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From  the  collection  of  the 

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San  Francisco,  California 

Essays  on  Espionage 

and  International  Law 

QuiNCY  Wright 
Julius  Stone 
Richard  A.  Falk 
Roland  J.  Stanger 

Edited  by  Roland  J.  Stanger 
With  a  Foreword  by  Richard  A.  Falk 

OHIO  state  university  press 

legally  excuse  himself  by  pleading  that  he  only  exe- 
cuted the  orders  of  his  Government,  and  the  latter  will 
never  interfere,  since  it  cannot  officially  confess  to  hav- 
ing commissioned  a  spy/'^  Thus  the  phenomena  of 
espionage,  although  often  a  significant  force  in  inter- 
national relations,  never  expHcitly  ascended  in  the  past 
to  the  state-to-state  level  of  traditional  international 
law.  That  is,  the  rules  of  the  game  allowed  a  state  to 
employ  spies  and  to  prosecute  foreign  spies  that  it 
could  catch.  These  two  situations  each  involved  the  re- 
lation between  a  government  and  an  individual,  whereas 
international  law,  at  least  until  recently,  was  exclusively 
concerned  with  the  rules  binding  states  in  their  relations 
with  one  another. 

Although  international  law  was  generally  silent  about 
espionage,  there  was  some  thought  given  to  the  special 
problem  of  the  treatment  of  spies  during  wartime.  There 
was  some  desire  to  give  minimum  protection  to  spies 
operating  in  enemy  territory  in  the  course  of  normal 
belligerent  operations.  There  does  not  seem  to  be  such 
a  great  difference  between  a  spy  and  an  enemy  soldier 
from  the  perspective  of  the  target  state.  Evidently,  it 
seemed  rational,  as  part  of  the  effort  to  regulate  the 
conduct  of  hostilities,  to  offer  a  captured  belligerent 
spy  some  slight  protection  against  the  wrath  of  the 
enemy.  This  sentiment  found  its  way  into  the  Hague 
Regulations  in  the  form  of  a  narrow  definition  of  a  spy 
and  a  requirement  of  trial  before  punishment.  Signifi- 
cantly, the  Hague  Regulations  do  not  make  belligerent 
espionage  a  violation  of  the  laws  of  war.  In  fact,  as 
Professor  Baxter  demonstrates  so  persuasively,  it  seems 


preferable  not  to  treat  belligerent  espionage  as  a  viola- 
tion of  international  law.^  For  belligerent  espionage  is 
just  one  of  several  constituent  forms  of  belligerency.  It 
expresses  a  logistic  means-end  relationship  to  character- 
istic belligerent  objectives. 

It  is  not  nearly  so  easy  to  decide  about  the  legal 
status  of  peacetime  espionage,  and  it  is  this  that  is  our 
primary  concern. 

Professor  Baxter  remarks  that  espionage  "is  of  doubt- 
ful compatibihty  with  the  requirements  of  law  govern- 
ing peaceful  intercourse  of  states."  *  The  nazi  use  of  fifth 
columns  and  the  Soviet  development  of  subversive 
techniques  of  infiltration  and  takeover^  suggest  the 
contemporary  importance  of  providing  states  with  some 
legal  protection  against  foreign  espionage.  And  yet  it 
was  the  American  sponsorship  of  the  U-2  overflights  of 
Soviet  territory  to  obtain  aerial  photographs  of  military 
targets  that  led  to  a  resurgence  of  interest  in  and  con- 
cern about  the  international  legal  imphcations  of  espio- 
nage.* The  United  States  broke  the  old  rules  of  the 
game  by  exphcitly  defending  its  recourse  to  espionage; 
in  addition,  the  possibility  of  nuclear  attack  from 
manned  aircraft  pointed  to  the  destabilizing  eflFect  of 
the  U-2  flights.  The  Powers  trial  and  the  breakup  of  the 
simultaneous  Paris  "summit"  meeting  dramatized  the 
serious  political  consequences  of  this  kind  of  espionage 
imder  present  world  conditions.  Although  the  United 
States  apparently  acceded  to  the  Soviet  demands  to 
terminate  the  U-2  flights,  it  has  made  pubhc  its  program 
to  achieve  the  same  results  by  orbiting  reconnaisance 
satellites  over  Soviet  territory. 


A  central  intellectual  problem  arises  when  one  tries 
to  think  about  the  status  of  espionage  in  the  categories 
set  by  the  traditional  dichotomy  between  peace  and 
war.  The  cold  war  and  the  revolution  in  military  tech- 
nology make  this  dichotomy  inadequate  as  a  tool  of 
analysis.  Thus  the  problem  of  espionage  in  the  con- 
temporary world  challenges  a  legal  analyst  to  develop 
a  new  conceptual  apparatus  that  is  able  to  cope  with 
the  transformed  character  of  international  relations. 

To  encourage  this  development  and  to  take  account 
of  the  substantive  failure  of  international  law  to  provide 
exphcit  norms  regulating  espionage,  especially  during 
periods  of  non-belligerency,  we  devoted  the  1960-61 
Regional  Meeting  of  the  American  Society  of  Interna- 
tional Law  to  the  topic  of  espionage.  Professors  Quincy 
Wright,  Julius  Stone,  and  Roland  Stanger  presented 
their  papers  on  May  12,  1961,  in  the  Law  School  Audi- 
torium of  the  Ohio  State  University  College  of  Law, 
with  Dean  Robert  J.  Nordstrom  presiding.  The  well- 
attended  meeting  was  enlivened  by  the  rich  diversity 
of  outlook  expressed  by  these  distinguished  speakers. 
These  essays  concentrate  upon  the  existence  and  devel- 
opment of  international  legal  standards  applicable  to 
aerial  espionage  performed  in  the  course  of  the  cold 
war.  This  focus  follows  naturally  from  progress  in  space 
technology,  and  particularly  from  the  failure  of  the  U-2 
and  its  imminent,  provocative  replacement  by  observa- 
tional satellites  capable  of  photographing  and  observ- 
ing the  Soviet  Union.  This  subject  matter  is  important 
today  because  it  bears  directly  and  ambiguously  upon 
the  hopes  for  disarmament  and  the  fears  of  a  nuclear 



surprise  attack.  Does,  for  instance,  space  espionage  in- 
hibit a  Soviet  surprise  attack  or  facilitate  a  United  States 
surprise  attack?  This  question  highlights  the  urgent 
relevance  of  these  new  forms  of  espionage  for  the  peace 
and  security  of  mankind. 

This  was  the  sixth  consecutive  year  in  which  the 
College  of  Law  has  cosponsored  a  regional  meeting  of 
the  American  Society  of  International  Law  on  the  cam- 
pus of  the  Ohio  State  University.  As  was  the  case  last 
year,  the  1961  conference  and  subsequent  pubhcation 
were  made  possible  by  the  generous  financial  support 
of  the  Mershon  Center  for  Education  in  National  Se- 
curity. The  planning  of  the  conference  was  greatly 
assisted  by  the  continuing  co-operation  of  Robert  J. 
Nordstrom,  chairman  of  the  Mershon  Center.  As  in 
prior  years,  the  leadership  and  participation  of  Profes- 
sor Roland  J.  Stanger  have  been  indispensable  to  the 
success  of  all  phases  of  the  1961  regional  meeting  pro- 

Richard  A.  Falk 

1.  Singer,  TmiEE  Thousand  Years  of  Espionage,  vii 

2.  1  Oppenheim,  International  Law,  §  455  at  862  ( 8th 
ed.  Lauterpacht  ed.  1955). 

3.  Baxter,  So-Called  ''Unprivileged  Belligerency" — Spies, 
Guerrillas,  and  Saboteurs,  28  Brit.  Yb.  Int  l  L.  322,  329-333 
(1951);  but  see  ex  parte  Quirin,  317  U.  S.  1  (1942);  also 
Hyde,  Aspects  of  the  Saboteur  Cases,  37  Am.  I.  Int  l  L.  88, 

4.  Id.  at  329. 


5.  For  survey  of  Soviet  practice,  see  Dallin,  Soviet 
Espionage  (1955). 

6.  Wright,  Legal  Aspects  of  the  U-2  Incident,  54  Am.  J. 
Intl  L.  836  (1960);  see  also  the  introductory  comment  of 
Professor  Berman  in  The  Trial  of  the  U-2,  i-xxx  ( 1960). 


Espionage  and  the  Doctrine  of  Non-intervention 
in  Internal  Affairs 

QuiNCY  Wright  3 

Legal  Problems  of  Espionage  in  Conditions  of 
Modem  Conflict 

Julius  Stone  29 

Space  Espionage  and  World  Order:  A  Considera- 
tion of  the  Samos-Midas  Program 

Richard  A.  Falk  45 

Espionage  and  Arms  Control 

Roland  J.  Stanger  83 


.    Espionage  and  the  Doctrine  of 
Non-Intervention  in 
Internal  Affairs 

QuiNCY  Wright  * 


HE  BASIC  PRINCIPLE  of  international  law  is  that 
of  respect  by  each  sovereign  state  for  the  territorial  in- 
tegrity and  political  independence  of  others.  This  prin- 
ciple was  generally  accepted  in  Europe  after  the  inex- 
pediency of  religious  war  had  been  demonstrated  by 
the  devastations  of  the  Thirty  Years  War,  and  the  ax- 
iom "Cuius  Regio  Eius  Rehgio"  had  been  accepted  as 
the  basis  of  the  Peace  of  Westphalia  in  1648/  In  spite 
of  renewed  eflForts  to  put  ideology  ahead  of  territorial 
sovereignty  at  the  time  of  the  French  Revolution  and 
the  Russian  Revolution,  this  principle  is  still  accepted  in 
the  United  Nations  Charter  based  on  the  "sovereign 
equahty  of  all  its  members,"  requiring  abstention  from 
"the  threat  or  use  of  force  against  the  territorial  in- 

*  Professor  Emeritus  of  International  Law,  University  of  Chicago, 
and  Professor  of  Foreign  Affairs,  University  of  Virginia. 

tegrity  or  political  independence  of  any  state,"  and  pro- 
hibiting "intervention  in  matters  which  are  essentially 
within  the  domestic  jurisdiction  of  any  state''  (Article 
2).  The  Latin  American  states  have  always  accepted 
this  principle,  and  the  United  States  joined  them  in  as- 
serting it  in  the  Montevideo  Convention  of  1933  on  the 
rights  and  duties  of  states.  All  the  American  states  em- 
phasized, in  this  and  other  inter- American  Treaties,  the 
duty  of  non-intervention — direct  or  indirect — in  either 
the  internal  or  external  affairs  of  other  states.^  President 
Eisenhower  proclaimed  it  when  he  said  in  April, 
1953:  "Any  nation  s  right  to  a  form  of  government  and 
an  economic  system  of  its  own  choosing  is  inalienable. 
Any  nation's  attempt  to  dictate  to  other  nations  their 
form  of  government  is  indefensible."^  Prime  Minister 
Khrushchev  accepted  this  principle  when  he  pro- 
claimed the  doctrine  of  peaceful  coexistence  for  all 
sovereign  states.*  Prime  Ministers  Nehru  and  Chou 
En-lai  and  the  representatives  of  other  Asian  and  Afri- 
can states  accepted  the  Panch  Shila  at  the  Bandung 
Conference  of  1955  calHng  for  mutual  respect,  non- 
aggression,  non-intervention,  equality,  and  peaceful  co- 

It  is  clear  that  intervention,  defined  as  dictatorial  in- 
terference in  the  internal  or  external  affairs  of  another 
state,  cannot  be  reconciled  with  the  basic  principles  of 
international  law.  Intervention  invades  the  territorial 
integrity  and  denies  the  political  independence  of  an- 
other state.  However,  states  that  are  in  continuous  and 
continually  increasing  contact  with  one  another,  as 
means  of  communication,  transportation,  and  pressure 


develop  with  the  march  of  science  and  technology,  find 
their  interests  aflpected  by  the  acts  of  others  and  attempt 
to  influence  those  acts.  They  do  so  by  internal  develop- 
ment of  culture,  economy,  and  power;  by  achievements 
in  technology,  science,  hterature,  and  the  arts;  by  in- 
ternational communication  utilizing  radio,  press,  popu- 
lar periodicals  and  technical  journals;  by  the  travel  and 
trade  of  their  citizens;  and  by  official  utterances,  legis- 
lative action,  and  diplomatic  correspondence.  Interna- 
tional law  is  faced  with  the  issue:  When  does  proper  in- 
fluence become  illegal  intervention? 

In  the  definition  of  intervention,  stress  has  been  laid 
on  the  words  dictatorial  and  interference.  Persuasion 
is  said  to  be  legitimate;  coercion,  dictatorial  and  ille- 
gitimate; but  the  fine  between  the  two  may  be  vague. 
Mihtary  invasion  is  certainly  coercive,  but  what  of  eco- 
nomic embargo,  secret  infiltration,  peremptory  diplo- 
matic notes,  or  incitement  to  subversion  by  radio?  Pub- 
lic statements  of  policy  or  purpose  by  a  government  are 
said  to  be  legitimate;  subversive  or  inciting  actions  by, 
or  with  complicity  of,  a  government  within  another 
state's  territory  or  affecting  another  state's  officials  are 
considered  interference  and  illegitimate.  But  here 
again  the  line  is  not  easy  to  draw.  Officially  supported 
hostihties,  assassinations,  or  incitements;  infiltration  of 
government  agencies;  bribery  of  officials;  espionage 
into  official  secrets;  and  other  acts  within  a  state's  terri- 
tory forbidden  by  its  laws — these  are  doubtless  inter- 
ference; but  what  of  expressed  or  implied  threats  in 
pubhc  pronouncements  of  policy  by  a  government? 
What  of  the  publications,  speeches,  and  conversations 

of  an  inciting  character  by  foreign  travelers?  What  of 
observations  and  reports  by  diplomatic  attaches  and 
citizens  instructed  by  another  government?  The  Su- 
preme Court  of  the  United  States  has  found  it  difficult 
to  distinguish  legitimate  uses  of  the  freedom  of  speech 
and  press  from  seditious,  subversive,  libelous,  or  incit- 
ing utterances  or  expositions.^ 

While  it  is  difficult  to  distinguish  dictatorial  inter- 
ferences from  proper  influence  and  exposition,  it  is 
even  more  difficult  to  distinguish  the  internal  affairs 
and  foreign  policy  of  a  state  from  its  acts  or  utterances 
which  so  affect  the  rights  and  interests  of  another  state 
that  they  can  be  regarded  as  of  international  concern, 
and  as  justifying  interference,  even  dictatorial  inter- 
ference, by  the  state  affected. 

A  state  can  undoubtedly  protest  acts  which  it  deems 
in  violation  of  its  rights  and  can  make  representations 
or  even  resort  to  economic  retorsions  against  acts  it 
deems  adverse  to  its  interests.  It  can  go  further  and 
conduct  reprisals  not  involving  the  use  of  armed  force 
to  rectify  injuries  arising  from  violation  of  its  rights,  if 
the  available  peaceful  means  of  adjustment  or  repara- 
tion have  been  exhausted  without  results,  and  the 
means  of  reprisal  are  no  more  serious  than  the  injury 
complained  of.  Finally,  a  state  can  use  armed  force  to 
defend  its  territory  or  armed  forces  against  armed  at- 
tack, to  assist  others  that  are  victims  of  such  attack,  or 
to  assist  the  United  Nations  "to  maintain  or  restore  in- 
ternational peace  and  security"  in  case  of  "threat  to  the 
peace,  breach  of  the  peace,  or  acts  of  aggression"  or 
to  enforce  a  judgment  of  the  International  Court  of 


Justice.  But  difficulties  of  precise  definitions  again  rise. 
Can  a  state  initiate  reprisals  on  the  basis  of  its  own 
judgment  that  it  has  suflFered  from  a  breach  of  interna- 
tional law?  How  can  it  be  determined  that  reprisal 
measures  are,  in  fact,  designed  to  rectify  wrongs?  Who 
determines  when  peaceful  remedies  have  been  ex- 
hausted? By  what  criteria  can  the  relative  seriousness 
of  the  initial  injury  and  the  reprisal  measures  be  deter- 
mined? Can  defensive  measures  be  taken  preventively 
in  case  of  immediate  threat  of  invasion?  Can  they  be 
taken  to  protect  citizens  abroad  in  danger  of  their  lives? 
How  does  the  United  Nations  determine  when  civil 
strife  threatens  international  peace?  Under  what  cir- 
cumstances can  the  United  Nations  intervene  to  protect 
the  *Tiuman  rights"  of  the  nationals  of  a  state  or  secure 
the  "self-determination"  of  a  colony?  May  states  inter- 
vene for  such  humanitarian  purposes  if  another  state  in 
its  internal  administration  is  guilty  of  atrocities  which 
"shock  the  conscience  of  mankind"? 

These  questions  raise  issues  requiring  careful  analy- 
sis if  the  broad  principles  of  international  law  are  to  be 
applicable  in  practice.^ 

Some  writers  have  been  so  impressed  by  the  circum- 
stances which  seem  to  justify  intervention  that  they 
have  elevated  "intervention"  into  a  normal  procedure 
of  international  law  to  rectify  wrongdoing.  Thus  Sto- 
well,  in  a  comprehensive  study  of  the  question,  con- 
cludes that  "intervention  in  the  relations  between  states 
is  the  rightful  use  of  force,  or  the  reliance  thereon,  to 
constrain  obedience  to  international  law."  Though  rec- 
ognizing the  serious  effect  of  intervention,  in  that  "it 

leaves  the  weak  without  the  means  to  bring  the  strong 
transgressor  to  justice,"  he  is  convinced  that  interna- 
tional law  must  depend  mainly  upon  "the  action  of  the 
separate  states  to  secure  redress  for  their  own  inju- 
ries/' ^  While  this  point  of  view  may  have  had  some  jus- 
tification in  an  earlier  stage  of  international  law,  it  is 
clearly  contrary  to  the  United  Nations  Charter,  which 
seeks  to  abolish  forcible  self-help  in  international  rela- 
tions except  in  individual  or  collective  self-defense 
against  armed  attack,  and  relegates  other  law  enforce- 
ment activities  to  collective  action  through  the  United 

Others,  instead  of  attempting  to  justify  intervention 
under  international  law,  conclude  that  international 
law  is  not  applicable  at  all  in  time  of  cold  war.  Cold 
war,  they  say,  is  more  like  hot  war  than  like  peace,  and 
traditional  international  law  has  permitted  each  bellig- 
erent during  a  state  of  war  to  invade  and  occupy  the 
territory  of  its  enemy,  to  destroy  its  armies,  to  subvert 
its  government,  to  incite  its  population,  to  establish 
blockades  and  other  economic  coercions,  to  carry  on 
propaganda  and  intimidation,  and,  in  general,  to  pay 
no  respect  to  the  territorial  integrity  or  political  inde- 
pendence of  its  enemy /^ 

Others  go  further  and  say  that  law  has  no  applicabil- 
ity to  international  affairs  under  any  circumstances. 
International  law  they  consider  an  illusion,  declaring 
that  international  relations  are  relations  of  power  in 
which  expediency  is  the  only  guide. 

If  such  positions  are  taken,  the  question  posed  by  the 
title  of  this  paper  is  irrelevant.  We  shall,  therefore,  as- 


sume  that  there  is  a  "doctrine  of  non-intervention,** 
that  it  is  a  legal  doctrine,  that  a  state  of  war  does  not 
exist  between  the  United  States  and  the  Soviet  Union, 
and  that  the  subject  under  discussion  is  the  lawfulness 
of  espionage  on  these  assumptions. 

We  must  first  be  clear  about  the  sources  of  interna- 
tional law.  Attitudes  toward  that  law  may  be  divided 
according  as  people  consider  themselves  "realists"  as- 
serting that  the  immediate  material  state  of  a£Fairs  can- 
not be  changed  by  ideas  but  only  by  force,  or  as  "ideal- 
ists" asserting  that  ideas  and  values  can,  in  time,  greatly 
influence  present  material  conditions,  that  men  and 
governments  act  from  beliefs,  not  from  capabilities, 
and  that  wars  are  made  in  the  minds  of  men,  not  in 
technological  equipment." 

A  balance  between  these  two  positions  has  been 
maintained  by  most  international  lawyers.  Law  differs 
from  sociology  in  that  it  formulates  the  values,  not  the 
behavior,  of  the  community.  The  two  are  related  be- 
cause behavior  provides  some  evidence  of  values,  and 
values  influence  behavior;  but  the  two  are  not  identical. 
The  behavior  of  some  members  of  a  community  at  most 
times,  and  of  most  at  some  times,  may  be  contrary  to 
the  generally  accepted  values  of  the  community.  Jural 
law,  therefore,  differs  from  sociological  law  in  that  it 
may  be  violated.  Practice  gives  evidence  of  law  only 
when  it  manifests  custom,  reflecting  a  subjective  sense 
of  right  or  obligation.  In  conformity  with  this  general 
conception,  international  law  reflects  not  the  values  of 
one  nation,  but  the  consensus  of  values  which  all  na- 
tions profess.  Because  of  the  decentralized  character 


of  the  society  of  nations,  the  consequent  imperfection 
of  the  sanctions  of  international  law,  and  the  absence 
of  an  international  legislative  authority,  international 
law  is  closer  to  behavior  than  are  most  systems  of  mu- 
nicipal law.  Nevertheless,  we  must  assume  that  it  is  law 
and  that,  to  discover  its  rules,  we  must  seek  the  values 
which  states  generally  accept,  and  give  weight  to  their 
practices  only  insofar  as  they  provide  evidence  of  that 

The  statute  of  the  International  Court  of  Justice  de- 
clares that  the  court,  to  decide  cases  in  accordance 
with  international  law,  shall  apply: 

(a)  international  conventions,  whether  general  or 

Particular,  establishing  rules  expressly  recognized 
y  the  contesting  states;  (b)  international  custom, 
as  evidence  of  a  general  practice  accepted  as  law; 
(c)  the  general  principles  of  law  recognized  by 
civilized  nations;  (d)  .  .  .  judicial  decisions  and 
the  teachings  of  the  most  highly  qualified  pub- 
licists of  the  various  nations,  as  subsidiary  means 
for  the  determination  of  rules  of  law  ( Article  38 ) . 

The  use  of  the  words  recognized  and  accepted  in 
this  formulation  emphasizes  the  importance  of  the  sub- 
jective factor  in  appraising  the  value  of  material  evi- 
dences of  the  law  in  conventions,  practices,  principles, 
precedents,  and  commentaries. 

What  is  the  status  of  peacetime  espionage  in  accord 
with  these  sources?  Very  little  has  been  said  about  it 
in  the  books.  Espionage  is  a  term  of  art  in  the  law  of 
war.  The  Hague  Convention  of  1907  on  the  laws  and 
customs  of  war  on  land  says: 


An  individual  can  only  be  considered  a  spy 
when,  acting  clandestinely,  or  on  false  pretenses,  he 
obtains,  or  endeavors  to  obtain,  information  in  the 
zone  of  operations  of  a  belligerent  with  the  inten- 
tion of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  wearing  a  disguise,  who  have 
penetrated  into  the  zone  of  operations  of  a  hostile 
army  for  the  purpose  of  obtaining  information,  are 
not  considered  spies.  Similarly,  the  following  are 
not  considered  spies:  soldiers  and  civilians,  carry- 
ing out  their  mission  openly,  intrusted  with  the  de- 
livery of  dispatches  intended  either  for  their  own 
army  or  for  the  enemy's  army.  To  this  class  belong 
likewise  persons  sent  in  balloons  for  the  purpose  of 
delivering  dispatches,  and,  generally,  of  maintain- 
ing communications  between  the  different  parts  of 
an  army  or  a  territory. 

A  spy,  taken  in  the  act,  shall  not  be  punished 
without  previous  trial. 

A  spy  who,  after  rejoining  the  army  to  which  he 
belongs,  is  subsequently  captured  by  the  enemy,  is 
treated  as  a  prisoner  of  war,  and  incurs  no  respon- 
sibility for  his  previous  acts  of  espionage  ( Articles 

Text  writers  generally  recognize  that  while  a  spy,  if 
captured  in  the  act,  can  be  executed  after  trial,  his 
activities  are  not  dishonorable,  his  government  is  not 
violating  law  in  sending  him,  and  his  act  is  not,  there- 
fore, a  war  crime.  Espionage  is  a  legitimate  belHgerent 
operation  peculiar  in  that  it  involves  considerable  risk 
to  the  spy,  but  the  same  is  true  to  a  somewhat  lesser 
degree  of  soldiers  who  engage  in  normal  belligerent 

Espionage,  the  essence  of  which  is  the  clandestine 
character  of  the  activity  and  the  false  pretenses  or  dis- 


guise  of  the  individual  who  engages  in  it,  is  to  be  dis- 
tinguished from  observation  by  a  scout  in  uniform  or 
from  reconnaissance  by  an  aviator,  under  cover  of 
darkness  or  distance,  but  not  in  secret,  under  false  pre- 
tenses, or  in  disguise.  The  scout  or  the  aviator,  if  cap- 
tured, are  entitled  to  the  normal  treatment  of  prisoners 
of  war. 

The  legitimacy  of  espionage  in  time  of  war  arises 
from  the  absence  of  any  general  obligation  of  belliger- 
ents to  respect  the  territory  or  government  of  the  enemy 
state,  and  from  the  lack  of  any  specific  convention 
against  it.  The  deception  involved  resembles  that  in 
stratagems  or  ruses  de  guerre  and  differs  from  violations 
of  specific  conventions  hke  those  of  the  flag  of  truce, 
red  cross  emblems,  and  armistices,  all  of  which  consti- 
tute 'perfidy*'  and  are  forbidden  by  the  law  of  war. 

In  time  of  peace,  however,  espionage  and,  in  fact, 
any  penetration  of  the  territory  of  a  state  by  agents  of 
another  state  in  violation  of  the  local  law,  is  also  a  viola- 
tion of  the  rule  of  international  law  imposing  a  duty 
upon  states  to  respect  the  territorial  integrity  and  politi- 
cal independence  of  other  states.  Each  state  has  the 
right  to  make  and  enforce  law  within  its  territory,  ex- 
cept insofar  as  it  is  under  positive  obfigations  of  inter- 
national law,  such  as  those  to  respect  the  immunities  of 
diplomatic  oflBcers,  foreign  warships,  foreign  forces, 
and  other  foreign  agencies  which  it  has  permitted  in  its 
territory;  to  permit  innocent  passage  of  foreign  vessels 
in  its  territorial  waters;  not  to  deny  justice  to  aliens 
whom  it  has  admitted  to  its  territory;  and  to  observe 
treaties  which  it  has  ratified  .JThere  is  no  rule-ofintema- 


tional  law  which  forbids  a  state  to  punish  individuals 
who  seek  to  obtain  classified  documents,  who  penetrate 
forbidden  areas,  who  fly  over  its  territory  without  per- 
mission, or  who  engage  in  seditious  or  other  activities 
which  it  has  made  illegal.  It  belongs  to  each  state  to 
define  peacetime  espionage,  sedition,  subversion,  sabo- 
tage, incitement,  and  conspiracy  as  it  sees  fit,  and  it  is 
the  duty  of  other  states  to  respect  such  exercise  of 
domestic  jurisdiction.  Thus  any  act  by  an  agent  of  one 
state  committed  in  another  state's  territory,  contrary 
to  the  laws  of  the  latter,  constitutes  intervention,  pro- 
vided those  laws  are  not  contrary  to  the  state's  inter- 
national obligations.  Intervention  by  unlawful  acts  in 
another  state's  territory  may  be  divided  into  direct  or 
open  intervention,  such  as  armed  invasion,  and  indirect 
or  subversive  intervention  involving  secret  activity. 
Since  the  government  responsible  for  the  latter  type  of 
action  seldom  acknowledges  its  responsibiHty  but  al- 
lows the  agent,  if  caught,  to  be  punished  without  pro- 
test, such  incidents  are  not  usually  the  subject  of  in- 
ternational discussion.  Numerous  communist  spies, 
saboteurs,  or  other  agents  have  been  detected  and 
punished  in  Western  countries,  but  the  commimist 
government  responsible  for  sending  them  has  never 
interfered  unless  the  individual  was  a  diplomatic  per- 
sonage. In  this  case  it  has  claimed  diplomatic  immunity 
for  the  individual,  and  if  that  claim  is  acknowledged, 
the  individual  is  not  punished  but  declared  persona  non 
grata  and  required  to  leave  the  country.  In  such  cases 
the  official  character  of  the  individual  is  known,  and  the 
incident  usually  results  in  an  official  protest  to  the  send- 


ing  state  by  the  receiving  state.  The  peculiarity  of  the 
U-2  incident  of  May  1,  1960,  was  the  acknowledgment 
of  responsibility  by  President  Eisenhower,  which  clearly 
gave  the  Soviet  Union  grounds  for  oflBcial  protest.  There 
can  be  no  doubt  of  the  competence  of  the  Soviet  Union 
to  deal  with  the  aviator,  Francis  Powers,  in  accord  with 
its  own  laws.  Although  Powers  was  an  agent  of  the 
United  States  government,  he  was  not  lawfully  within 
Soviet  territory,  and  so  was  not  entitled  to  any  im- 
munity under  international  law.^^  The  immunity  claimed 
by  Great  Britain  for  Alexander  McLeod  in  the  Caroline 
incident  of  1838  arose  from  the  fact  that  McLeod  was 
not  only  a  soldier  acting  under  British  orders,  but  also 
lawfully  within  American  territory,  because  the  inva- 
sion was  justified  by  the  necessity  for  self-defense." 
Intervention,  however,  goes  beyond  action  by  one 
state  in  the  territory  of  another.  Governments  are 
obliged  to  refrain  from  inciting  propaganda,  libelous 
utterances,  or  other  acts  intended  to  upset  the  govern- 
ment of  another  state.  It  would  appear  that  the  procla- 
mation by  the  President  of  the  United  States  of  "Captive 
Nations  Week,"  under  authority  of  an  act  of  Congress, 
was  of  this  character,^*  as  was  the  President's  statement 
of  sympathy  for  rebels  seeking  to  upset  the  government 
of  President  Castro  in  Cuba.^^  It  is  within  the  domestic 
jurisdiction  of  each  state  to  establish  its  government  by 
its  own  internal  processes  and  to  change  that  govern- 
ment, whether  by  peaceful  or  violent  means.  Each  state 
enjoys  the  "right  of  revolution"  so  long  as  the  exercise 
of  that  right  by  its  people  does  not  threaten  the  peace 
and  security  of  other  states.  Consequently,  official  acts 


of  other  governments  assisting  rebels,  or  interfering  in 
behalf  of  either  a  recognized  government  or  the  insur- 
gents in  time  of  civil  strife,  constitutes  forbidden  inter- 
vention. This  is  expressly  recognized  by  the  inter- 
American  convention  of  1928  on  Civil  Strife.^® 

Free  governments  have  held  that,  while  official  acts 
of  the  kind  described  constitute  illegal  intervention, 
this  is  not  true  of  private  acts  w^ithin  their  territory. 
They  consider  themselves  under  no  obligation  to  pre- 
vent propaganda  hostile  to  foreign  governments  by 
private  individuals  in  their  territory.  Such  activities 
they  consider  within  the  proper  guarantees  of  freedom 
of  speech  and  press.  Autocratic  governments,  on  the 
other  hand,  have  often  censored  such  activities  within 
their  territory  and  have  attempted  to  gain  recognition 
of  an  international  duty  of  other  governments  to  do 
likewise.  There  have  indeed  been  international  con- 
ventions requiring  censorship  of  radio  communications 
of  subversive  character,  and  punishment  of  acts  of  ter- 
rorism against  foreign  governments.  It  is  also  true  that 
governments  are  obliged  to  exercise  due  diligence  to 
prevent  mihtary  expeditions  from  leaving  their  territory 
to  operate  against  other  governments.  Failure  in  this 
regard,  as  well  as  launching  of  official  mihtary  expedi- 
tions, constitutes  aggression,  which  is  exphcitly  for- 
bidden by  the  United  Nations  Charter.  The  United 
States  may  have  been  guilty  of  such  want  of  due  dili- 
gence in  the  Cuban  incident  of  April,  1961.  In  general, 
however,  there  appears  to  be  a  distinction  between 
hostile  acts  by  a  government  and  hostile  acts  by  a  pri- 
vate individual.  The  latter  do  not  constitute  interven- 


tion  unless  there  has  been  government  complicity  or,  in 
the  case  of  military  action,  government  negligence. 

The  problem  of  negligence  is  closely  related  to  the  sic 
utere  tuo  rule,  which  imposes  liabihty  upon  a  state  for 
incidents  in  its  territory  injurious  to  another  state,  such 
as  the  use  of  river  waters  by  an  upper  riparian  in  such  a 
way  as  to  deprive  the  lower  riparian  of  a  fair  share  of 
the  stream,  the  operation  of  a  factory  which  sends 
noxious  fumes  across  the  border,  or  the  launching  of  a 
satellite  or  missile  which  falls  in  another  state  and 
causes  serious  damage  to  the  latter.  In  such  cases  lia- 
bihty may  go  beyond  that  for  willful  act  or  even  negh- 
gence  and  exist  without  fault.  The  responsibility  arises 
from  the  inherently  dangerous  character  of  the  activity. 

In  view  of  these  general  rules  of  international  law, 
are  there  any  special  conditions  justifying  peacetime 
espionage?  Efforts  have  been  made  to  justify  such  ac- 
tion by  the  United  States  in  the  Soviet  Union  because 
of:l  (1)  a  general  practice  of  espionage  by  all  states, 
(2)  the  necessity  for  self-defense,  (3)  the  necessity  to 
maintain  the  balance  of  power,  (4)  the  unreasonable- 
ness of  Soviet  objection  in  view  of  its  own  espionage 
activities,  and  ( 5 )  the  virtue  of  espionage  or  other  types 
of  intervention  against  communism/  Consideration  will 
be  given  to  each  of  these  alleged  justifications. 

1.  Although  very  few  writers  on  international  law 
have  discussed  peacetime  espionage,  the  well-known 
British  jurist,  Lassa  Oppenheim,  writes  as  follows: 

Spies  are  secret  agents  of  a  state  sent  abroad  for 
the  purpose  of  obtaining  clandestinely  information 


in  regard  to  military  or  political  secrets.  Although 
all  states  constantly  or  occasionally  send  spies 
abroad,  and  although  it  is  not  considered  wrong 
morally,  pohtically,  or  legally  to  do  so,  such  agents 
have,  of  course,  no  recognized  position  whatever 
according  to  international  law,  since  they  are  not 
agents  of  states  for  their  international  relations. 
Every  state  punishes  them  severely  when  they  are 
caught  committing  an  act  which  is  a  crime  by  the 
law  of  the  land,  or  expels  them  if  they  cannot  be 
punished.  A  spy  cannot  be  legally  excused  by 
pleading  that  he  only  executed  the  orders  of  his 
government  and  the  latter  will  never  interfere, 
since  it  cannot  oflBcially  confess  to  having  commis- 
sioned a  spy." 

The  suggestion  that,  because  of  the  frequency  of  the 
practice,  sending  spies  is  not  "legally'*  wrong  seems  to 
be  contradicted  by  the  last  part  of  this  quotation.  Why 
cannot  a  government  "officially  confess  to  having  com- 
missioned a  spy,"  unless  it  is  legally  wrong?  This 
would  appear  to  be  a  case  in  which  frequent  practice 
has  not  estabhshed  a  rule  of  law  because  the  practice  is 
accompanied  not  by  a  sense  of  right  but  by  a  sense  of 

2.  After  the  U-2  incident,  the  United  States  sought  to 
defend  itself  by  asserting  that  such  activity  was  neces- 
sary for  self-defense.  The  United  States,  as  an  open 
society,  presents  every  opportunity  to  the  Soviet  Union 
to  detect  any  preparations  for  surprise  attack,  but  in  the 
closed  society  of  the  Soviet  Union,  the  United  States 
had  to  utiHze  aerial  espionage  for  this  purpose,  espe- 
cially after  the  Soviet  Union  had  refused  to  accept  the 
"open  skies"  proposal  made  by  President  Eisenhower 


in  the  Summit  Conference  of  1955.  President  Eisen- 
hower said  in  reference  to  the  U-2:  "No  one  wants 
another  Pearl  Harbor,"  and  Secretary  of  State  Herter 

It  is  unacceptable  that  the  Soviet  political  system 
should  be  given  the  opportunity  to  make  secret 
preparations  to  face  the  free  world  with  the  choice 
of  abject  surrender  or  nuclear  destruction.  The 
Government  of  the  United  States  would  be  derehct 
to  its  responsibihty,  not  only  to  the  American 
people,  but  to  free  peoples  everywhere  if  it  did  not, 
in  the  absence  of  Soviet  cooperation,  take  such 
measures  as  are  possible  unilaterally  to  lessen  and 
to  overcome  this  danger  of  surprise  attack.^® 

International  law,  however,  permits  mihtary  self- 
defense  only  in  case  of  armed  attack  or  at  least 
immediate  threat  of  armed  attack.  The  danger  appre- 
hended by  the  United  States  flowed  from  an  interpreta- 
tion of  Soviet  pohcy  and  intent,  not  from  an  immediate 
threat  of  attack.  Furthermore,  if  the  United  States 
planned  no  first  strike  with  nuclear  weapons,  as  it  has 
repeatedly  asserted,  it  is  difficult  to  see  what  direct 
defense  value  there  would  be  in  aerial  observations. 
Although  they  might  add  to  the  effectiveness  of  a 
second  strike,  the  information  so  gained,  if  it  remained 
secret,  would  not  have  deterrent  value. 

American  courts  have  held  that  a  single  individual 
with  a  military  purpose,  such  as  espionage  or  observa- 
tion from  aircraft,  may  constitute  a  "military  expedi- 
tion or  enterprise**  punishable  under  United  States 
criminal  law,  if  he  proceeds  from  American  territory 


with  the  intent  to  enter  foreign  territory.^®  While  a  re- 
connaissance plane  may  carry  a  bomb  of  great  destruc- 
tive power,  and  its  overflight  may  therefore  be  re- 
garded as  an  armed  attack  by  the  state  overflown,  it 
seems  doubtful  whether  the  dispatch  of  such  a  plane, 
when  not  actually  armed  but  intended  merely  for  re- 
connaissance, can  be  regarded  as  an  act  of  aggression. 
It  is,  however,  an  act  of  intervention,  and  cannot  be 
justified  on  grounds  of  self-defense  except  in  response 
to  an  actual  attack  or  immediate  threat  of  armed  at- 

3.  George  Schwarzenberger  writes  in  an  article  en- 
titled "Hegemonial  Intervention": 

While  the  nuclear  stalemate  between  the  world- 
camps  lasts,  each  side  may  claim  with  a  greater  or 
lesser  degree  of  justice  that,  by  keeping  its  own 
strength  unimpaired,  it  makes  its  own  indispen- 
sable contribution  to  the  maintenance  of  world 
peace.  Thus,  in  the  minds  of  the  world-camp  direc- 
tors and  their  publicity  departments,  intervention 
for  the  purpose  of  maintaining  the  status  quo  in  the 
relative  strength  of  the  two  camps  is  easily  equated 
with  serving  the  interests  of  world  peace. ^^ 

However,  he  regards  this  argument  as  political  rather 
than  legal,  recognizing  that  justification  cannot  be 
found  in  international  law  or  the  United  Nations  Char- 
ter, and  that  'Tiowever  circumspectly  handled,  hege- 
monial  intervention  is  always  an  instrument  of  interna- 
tional pohtics  that  involves  taking  calculated  risks."  He 
thus  appears  to.  endorse  the  well-known  position  of  Sir 
Vernon  Harcourt  that  "intervention  is  a  high  and  sum- 


mary  procedure  which  may  sometimes  snatch  a  remedy 
beyond  the  reach  of  law.  ...  Its  essence  is  illegahty, 
its  justification  is  its  success.''  ^^ 

4.  Ambassador  Lodge  and  Secretary  Herter  sought  to 
justify  the  U-2  flight  on  the  ground  that  the  Soviet  gov- 
ernment was  engaged  in  espionage  on  an  even  larger 
scale  than  the  United  States.  Ambassador  Lodge  cited 
eleven  cases  in  which  Soviet  spies  had  been  unmasked 
in  the  United  States  since  the  death  of  Stalin,  and  said 
that  there  had  been  360  convictions  of  Russian  espio- 
nage agents  in  courts  of  free-world  countries,  and  that 
these  represented  only  a  minor  proportion  of  the  cases 
in  which  Soviet  espionage  activities  had  been  actually 
involved. ^^  This  tu  quoque  argument  has  had  a  certain 
recognition  in  the  equitable  principle  of  "clean  hands," 
'*he  who  seeks  equity  must  do  equity."  Judge  Manley  O. 
Hudson  invoked  this  principle  in  his  opinion  in  the 
River  Meuse  Case  in  the  International  Court  of  Justice, 
defining  it  as  follows: 

Where  two  parties  have  assumed  an  identical  re- 
ciprocal obligation,  one  party  which  is  engaged  in 
a  continuous  non-performance  of  the  obligation 
should  not  be  permitted  to  take  advantage  of  a 
similar  non-performance  of  the  obligation  by  the 
other  party.^* 

While  this  equitable  principle  is  not  normally  appli- 
cable in  criminal  law,  the  Nuremburg  Tribunal  refused 
to  proceed  with  indictments  against  Admirals  Raeder 
and  Doenitz,  accused  of  ordering  the  sinking  of  mer- 
chant vessels  by  submarines  at  sight,  after  evidence  had 


indicated  that  British  and  American  Naval  authorities 
had  done  the  same  thing  during  World  War  II.  In  the 
particular  incident  of  the  U-2,  the  Soviet  representative, 
Gromyko,  sought  to  refute  this  argument  by  implying 
that  ordinary  espionage  and  aerial  reconnaissance  are 
so  diflFerent  that  this  "clean  hands"  principle  did  not 
apply.  It  is  clear  that  the  nature  and  gravity  of  delin- 
quencies must  be  similar,  if  not  identical,  to  justify  in- 
vocation of  this  principle.  An  over-flying  plane  is  more 
capable  of  carrying  a  bomb  of  great  destructiveness 
than  is  an  ordinary  secret  agent.  The  United  States, 
while  calling  attention  to  reconnaissance  by  Russian 
ships  and  espionage  by  agents,  did  not  assert  any  cases 
of  Soviet  aerial  reconnaissance,  although  it  subse- 
quently disclosed  that  a  Soviet  diplomatic  officer  had 
hired  an  American  aviator  to  photograph  strategic  bases 
in  the  United  States.  In  principle,  all  peacetime  espio- 
nage in  foreign  territory  is  illegal;  but  when  all  are  en- 
gaging in  it,  it  seems  unreasonable  to  single  out  one 
state  for  utilizing  a  particular  form  of  espionage,  even 
though  that  form  carries  possibihties  of  hostile  action 
going  beyond  espionage.  The  difference  should  not  be 
exaggerated.  Although  a  reconnaissance  airplane  may 
carry  bombs,  a  secret  agent  may  plant  a  bomb  and  en- 
gage in  various  forms  of  sabotage.  Therefore,  while 
this  argument  is  of  somewhat  doubtful  legal  value,  it 
undoubtedly  has  much  moral  cogency. 

The  value  of  the  argument  may  be  even  greater 
when  third  states  are  involved.  Richard  Falk,  referring 
to  the  Spanish  Civil  War,  proposes  a  rule  "that  inter- 
ventionary   contacts,    once    estabhshed,    invite    other 


states  to  counter-intervene,  at  least  to  an  oflFsetting  de- 
gree." "  If,  as  illustrated  in  the  Spanish  Civil  War,  states 
favorable  to  one  side  observe  the  rule  of  non-interven- 
tion in  civil  strife,  and  those  favorable  to  the  other  side 
do  not,  the  latter  is  likely  to  win.  It  should  be  noticed, 
however,  that  such  counter-intervention  tends  to  de- 
velop the  civil  strife  into  general  international  war.  For 
this  reason,  the  Charter  permits  intervention  only  by 
the  United  Nations  in  such  circumstances  and  the 
United  Nations  has  called  upon  all  states  not  to  inter- 
vene, as  illustrated  in  the  Security  Council's  Resolution 
of  February,  1961,  in  the  Congo  situation.  This  situation 
suggests  the  value  of  the  rule  of  international  law 
forbidding  intervention  in  civil  strife  by  states  individu- 
ally. As  Falk  points  out,  "considerations  influencing 
action  by  an  international  organization  are  quite  dif- 
ferent from  those  that  should  be  available  to  a  single 
state." '' 

Under  present  circumstances,  it  does  not  appear  that 
a  general  rule  justifying  counter-intervention  is  expedi- 
ent. Rather,  action  should  be  taken  through  the  United 
Nations  to  terminate  the  original  intervention. 

5.  Richard  Falk  further  points  out  that  "the  oflBcial 
United  States  view  is  to  regard  the  Caracas  Resolution 
as  a  revival  of  the  Monroe  Doctrine,  shifted  from  a 
unilateral  to  a  multilateral  axis,  and  directed  against 
Communism  rather  than  Colonialism.""  After  noting 
policies  in  sections  of  the  world  other  than  Latin  Amer- 
ica, he  concludes:  "The  United  States*  recognition  prac- 
tice tends  to  be  as  interventionary  as  possible  whenever 
Cold  War  issues  are  involved."  ^®  There  can  be  no  doubt 


that  these  statements  are  borne  out  by  the  Caracas  and 
other  Latin  American  declarations  against  communism, 
the  Truman  and  Eisenhower  Doctrines,  the  fact  that 
the  United  States  limits  seato  interventions  to  those 
against  communism,  and  the  non-recognition  of  main- 
land China,  North  Korea,  North  Vietnam,  and  East 
Germany.  They  are,  however,  statements  of  American 
poHcy  and  not  of  international  law.  The  United  Nations 
Charter  recognizes  the  sovereign  equahty  of  all  mem- 
bers, whatever  their  ideologies.  Thus  it  does  not  appear 
that  espionage  or  any  other  form  of  intervention  can  be 
legally  justified  on  the  ground  that  it  is  carried  on  as 
part  of  a  crusade  against  communism. 

Even  as  a  policy,  the  suggestion  that  communism, 
which  now  governs  over  one-third  of  the  human  popu- 
lation, is  a  doctrine  so  wicked  that  illegal  means  can  be 
used  against  it  is  difficult  to  support.  Such  a  pohcy 
resembles  those  which  supported  continuous  hostility 
between  Christendom  and  Islam  in  the  Middle  Ages, 
between  Cathohcism  and  Protestantism  for  a  century 
before  the  Peace  of  Westphalia,  and  between  absolute 
monarchs  and  the  principles  of  the  American  and 
French  Revolutions  in  the  late  eighteenth  century. 
Modern  international  law  and  the  United  Nations 
Charter  have  attempted  to  prevent  exactly  such  poHcies, 
which  could  be  in  the  future  as  they  have  been  in  the 
past,  a  major  cause  of  universal  war. 

It  therefore  seems  that  in  the  modem  world,  even 
more  than  in  the  earher  periods  mentioned,  ideological 
war  ought  to  be  avoided.  The  question  of  which  ide- 
ology is  the  best  for  a  given  people  cannot  be  settled  by 


outside  intervention  but  only  by  the  people  involved, 
through  revolutionary  action  or,  preferably,  by  discus- 
sion in  a  free  forum  of  public  opinion.  For  the  world  as 
a  whole,  such  a  free  forum  may  be  diflBcult  to  achieve, 
but  to  achieve  it  should  be  the  object  of  states,  as  it  is 
of  the  United  Nations.  To  this  end,  the  rule  of  inter- 
national law,  requiring  mutual  respect  by  states  for  the 
territorial  integrity  and  poHtical  independence  of  other 
states,  should  be  observed.  Illegal  intervention  should 
be  condemned,  and,  where  it  occurs,  collective  action 
through  the  United  Nations,  or,  in  the  Americas, 
through  the  Organization  of  American  States,  should 
be  sought. 

Such  a  policy  is  particularly  important  for  democra- 
cies because  both  experience  and  analysis  show  that  in 
a  competition  for  power,  particularly  in  using  subver- 
sive methods,  dictatorships  have  great  advantages. 
They  can  act  rapidly,  secretly,  and  effectively.  They  can 
divert  resources  away  from  the  production  of  consumer 
goods  to  the  building  of  power.  They  can  respond  to 
requests  for  assistance  by  underdeveloped  countries 
immediately,  without  congressional  debate  and  with- 
out apparent  political  strings.  In  the  present  world,  the 
communist  powers  have  the  advantage  of  interior  lines 
and  can  threaten,  mobihze  or  attack  successively  at  dif- 
ferent points  on  their  long  periphery.  Because  of  these 
advantages,  manifested  in  the  continuous  increase  of 
the  relative  power  of  the  commimist  states  since  World 
War  II,  these  states  are  not  eager  to  accept  the  rule  of 
law.*®  Yet  Khrushchev's  demand  for  peaceful  coexist- 
ence and  competition  may  be  genuine.  He  probably 


does  not  want  nuclear  war,  which  would  destroy  the 
fruits  of  Soviet  economic  development.  His  people 
clearly  do  not  want  the  suflFering  of  another  world  war. 
He  may  believe  that  his  model  will  eventually  prove 
acceptable  to  the  poor  people  of  Asia,  Africa,  and  Latin 
America,  and  even  to  the  West,  without  the  support  of 
mihtary  aggression  or  subversive  intervention.  If  he  be- 
lieves, as  Walter  Lippmann  says  he  does,  in  the  inevi- 
table triumph  of  communism  in  the  deterministic  march 
of  history,  he  may  not  want  to  run  the  risk  that  such 
methods  will  eventuate  in  war.  Finally,  he  may  fear 
that  in  a  general  war,  whatever  might  happen  to  the 
Western  world,  China,  rather  than  Russia,  would 
emerge  as  the  leader  of  the  communist  world. 

It  would  appear,  therefore,  that,  diflBcult  as  may  be 
the  task,  maintenance  of  the  rule  of  international  law 
against  intervention  of  any  kind  may  not  be  impossible. 
The  West  would  certainly  gain  by  a  world  in  which 
states  competed  in  a  forum  of  opinion  stabilized  by  law 
and  in  which  each  could  present  the  values  of  its  model 
of  social,  economic,  and  political  organization  for  others 
to  imitate.  In  such  a  world,  democracy  would  have  a 
fair  chance  to  survive.  Its  survival  is  doubtful  in  a  jun- 
gle world  which  places  a  premium  on  skills  in  subver- 
sion, infiltration,  espionage,  guerrilla  warfare,  nibbling 
aggression,  and  other  forms  of  intervention  in  which 
totahtarian  dictatorships  have  so  great  an  advantage. 
Deciding  what  steps  can  be  taken  to  "make  the  world 
safe  for  democracy''  requires  study,  less  in  the  tech- 
nology of  deterrence  than  in  the  psychology  of  tension 
reduction.  By  avoiding  interventions  themselves  and 


utilizing  international  organizations  to  frustrate  inter- 
ventions by  others,  by  pursuing  policies  of  defense 
without  provocation,  and  conciliation  without  appease- 
ment, democracies  may  win  confidence  in  their  peace- 
ful intentions  in  the  uncommitted  and  even  in  the 
communist  world.  An  atmosphere  favorable  to  arma- 
ment negotiation  may  emerge  and  the  peace  of  mutual 
terror  may  in  time  give  way  to  a  peace  of  mutual 
confidence  that  law  will  be  respected. 

There  can  be  no  guarantee  that  this  will  happen.  The 
hope  that  it  may  rests  on  the  belief  that  people  individu- 
ally, in  the  long  run,  prefer  survival  and  freedom  to 
ideological  allegiance,  and  that  peoples  collectively 
prefer  self-determination  and  prosperity  to  domination. 
The  alternative  of  continual  competition  in  arms,  prop- 
aganda, subversion,  and  espionage  between  free  de- 
mocracies and  totahtarian  autocracies  seems  almost 
certain,  in  the  atomic  age,  to  spell  the  end  of  democracy, 
if  not  of  humanity. 

1.  Wright,  International  Law  and  Ideologies,  48  Am. 
J.  Int L  L.  616 ff.  (Oct.  1954). 

2.  International  Legislation  (Hudson  ed. ),  Vol.  4, 
p.  2418,  Vol.  6,  pp.  450,  623,  628,  Vol.  7,  p.  578;  Am.  J. 
Intl  L.,  Vol.  46,  p.  46  (Supp.  1952),  Vol.  48,  p.  123  (Supp. 
July  1954);  Wright,  Intervention  and  Cuba  in  1961,  in 
Proceedings  of  the  American  Society  of  International 
Law  (1961)  p.  2. 

3.  28  Dept  State  Bull.  599  (1953). 

4.  38  Foreign  Affairs  3flF.  (1959). 

5.  Wright,  Asian  Experience  and  International  Law,  in  1 
International  Studies  85  (Indian  School  of  International 
Studies,  July  1959). 


6.  Dennis  v.  United  States,  341  U.S.  494  (1951); 
Pritchett,  Civil  Liberties  and  the  Vinson  Court  71  ff. 
(University  of  Chicago  Press,  1954). 

7.  Wright,  The  Prevention  of  Aggression,  50  Am.  J. 
Int'l  L.  526  (July  1956). 

8.  Stov^^ll,  Intervention  in  International  Law  vi,  46 
(Washington,  D.C.,  John  Byrne,  1921);  International 
Law  72  (N.  Y.,  Henry  Holt,  1931). 

9.  Julius  Stone  attempts  to  interpret  the  United  Nations 
Charter  so  as  to  permit  military  reprisals,  such  as  those 
undertaken  by  Great  Britain  and  France  at  Suez  in  1956 
and  condemned  by  the  United  Nations.  See  Aggression 
AND  World  Order  (New  York,  1958). 

10.  George  Sokolsky,  in  a  column  in  the  Washington 
Post,  May  10,  1961,  writes:  "The  time  is  rapidly  coming 
when  the  United  States  will  weary  of  such  semantic  ex- 
pressions as  Cold  War  and  will  recognize  that  war  has  many 
difiFerent  devices  and  that  World  War  II  never  ended  but 
has  continued  in  different  forms."  He  overlooks  the  fact 
that  in  World  War  II  the  Soviet  Union  was  an  aUy,  not  an 
enemy  of  the  United  States. 

11.  The  meanings  of  the  terms  "realism"  and  "ideahsm" 
are  highly  controversial.  See  Wright,  Realism  and  Idealism 
in  International  Politics,  5  World  Politics  116  ff. 

12.  Wright,  Legal  Aspects  of  the  U-2  Incident,  54  Am. 
J.  Intl  L.  836 ff.  (Oct.  1960). 

13.  Moore,  International  Law  Digest,  Vol.  2,  p. 
409  ff..  Vol.  6,  pp.  261,  1014. 

14.  Wright,  Subversive  Intervention,  54  Am.  J.  Intl  L. 
521  ff.  (July  1960). 

15.  Wright,  Intervention  and  Cuba  in  1961,  Proceed- 
ings OF  the  American  Society  of  International  Law 
(1961)  p.  2. 

16.  4  International  Legislation  2418  (Hudson  ed.). 

17.  Oppenheim,  1  International  Law,  §  455  (Lon- 
don, Longmans,  3d  ed.  1920). 

18.  42  Dep't  State  BuU.  816  (1960). 


19.  United  States  v.  Sander,  241  Fed.  417,  419  (1917); 
Hackworth,  7  International  Law  Digest  399. 

20.  Wright,  Legal  Aspects  of  the  U-2  Incident,  54  Am. 
J.  Intl  L.  846. 

21.  Schwarzenberger,  Hegenwnial  Intervention,  12  Year 
Bcx)K  OF  World  Affairs  261  (London  Institute,  1959). 

22.  "HiSTORicus,"  Letters  on  Some  Questions  of  Inter- 
national Law  41  (London,  1863). 

23.  Ambassador  Henry  Cabot  Lodge,  Jr.,  in  United  Na- 
tions Security  Council.  See  Wright,  Legal  Aspects  of  the 
U-2  Incident,  54  Am.  J.  Intl  L.  847,  851. 

24.  P.C.I.J.,  ser  A/B  No.  70,  p.  77;  4  World  Court  Re- 
ports 232  (Hudson  ed.). 

25.  Falk,  The  United  States  and  the  Doctrine  of  Non- 
intervention in  the  Internal  Affairs  of  Independent  States, 
5  How.  L.  J.  169  (June  1959). 

26.  Id.  at  170. 

27.  Id.  at  182. 

28.  Id.  at  185. 

29.  A.  Ravenholt,  an  experienced  reporter  in  southeast 
Asia,  after  pointing  out  some  "obvious  disasters"  of  United 
States  "covert  operations"  in  that  area  and  the  hkehhood  of 
further  mistakes  because  they  are  "built  into  the  system," 
concludes:  **While  many  of  these  difficulties  may  be  the 
United  States'  growing  pains  in  a  new  dimension  of  the 
world  struggle,  still  unanswered  is  the  question  of  the  role 
and  management  of  such  secret  activity  by  a  democracy." 
Washington  Post,  May  10,  1961. 


Legal  Problems  of  Espionage  in 
Conditions  of  Modern  Conflict 

Julius  Stone  * 


R.  CHAIRMAN,  let  me  thank  you  for  your  kind 
words  and  say  how  grateful  I  am  for  the  opportunity 
of  being  here  with  you  again.  May  I  also  thank  my 
friend  Quincy  Wright  for  his  very  moving  address  with 
so  little  of  the  drive  of  which  I  found  myself  in  agree- 
ment. I  wish,  Mr.  Chairman,  that  you  hadn  t  given  me 
any  advance  subject  at  all.  I  could  then  have  con- 
centrated on  delivering  a  full  bill  of  particulars  as  to 
the  respects  in  which  I  find  myself  in  disagreement  ( of 
course  with  great  trepidation)  with  this  very  distin- 
guished American  international  lawyer.  Or  perhaps  it 
is  fortunate,  nevertheless,  that  you  gave  me  other  direc- 
tives so  that  I  cannot  really  attempt  to  say  what  I  know 
it  is  my  duty  through  you  to  say  to  Quincy  Wright.  And, 

*  Challis  Professor  of  International  Law  and  Jurisprudence,  Uni- 
versity of  Sydney,  Australia. 

of  course,  it  is  entirely  beyond  my  powers  to  showjbow 
completely  wrong  on  the  basic  matter  he  really  is. 

Listening  to  him  did,  indeed,  leave  me  thinking 
about  my  favorite  young  lady  from  Melbourne.  Mel- 
bourne is  a  very  much  primmer  city,  Mr.  Chairman, 
than  Sydney.  Young  ladies  are  well  brought  up,  with 
the  proper  restraints,  and  this  young  lady  was  brought 
up  in  a  very  fine  family,  who  lived  in  a  veryexcellent 
home  in  very  beautiful  grounds.  Her  bedroom  led  out 
through  French  doors  onto  a  lovely  lawn;  and  one 
morning  as  she  slept  there  a  dark  and  very  handsome 
stranger  came  in  through  the  French  windows  with- 
out saying  a  word.  She  was  startled,  of  course,  and  was 
awakened  by  his  arrival.  He  came  up  to  her  bedside, 
turned  back  the  bedclothes,  lifted  her  in  his  arms, 
strolled  with  purposeful  determination  out  through  the 
French  windows,  across  the  lawn,  moved  over  to  the 
banks  of  the  Yarra  that  were  beautiful  at  that  point, 
and  laid  her  down  gently  oii_±he-green  sward.  And 
meanwhile  she  was,  of  course,  completely  dumb- 
founded with  fear  and  terror;  only  when  he  had  laid 
her  down  was  she  able  to  marshal  a  few  words.  She  then 
said  with  bated  breath — and  this  is  the  dramatic  mo- 
ment which  Professor  Wright's  whole  address  brought 
back  to  me — she  stammered  and  said  "A-a-and  what 
are  you  going  to  do  now?*'  And  the  dark  handsome 
stranger  looked  straight  at  her  as  he  spoke  his  first 
words.  And  he  said  "Lady,  it's  your  dream  I** 

I  therefore  must  address  myself  to  a  much  narrower 
topic  within  the  limits  of  time  that  I  have.  This  is  the 
question,  What  sense  are  we  to  make  in  terms  of  human 


survival  of  the  main  positions  in  the  controversy  con- 
cerning the  U-2?  And  I  would  like  you,  if  you  would,  to     \ 
approach  this  withjne^  the  hght  of  reasoiTas  applied     1 
to  our  whole  present  situation,  and  not  just  in  terms  of 
th'e'diplomatic  and  propaganda  situation  that  arose 
after  the  U-2  incident,  partly  resulting  frpm^rtain.dif:__ 
ficulties  and  ineptitudes  of  the  United  States  adminis- 
tration in  dealing  with  it.  I  would  like  us  rather  to  ad- 
dress our  minds  to  the  import  of  aerial  espionage,  and 
also  along  with  this  of  espionage  from  outer  space;  to 
that  import  for  the  common  interest  of  both  sides  in  the 
present  power  struggle.  I  want  to  put  before  you  a  view   / 
of  espionage  which  transcends  that  of  traditional  inter- 
national law.  Not  that  international  law  leaves  no  room 
for  this  view;  on  the  contrary  it  leaves  plenty  of  room 
for  it.  But  the  traditional  law  has  never  addressed  it- 
self to  this  aspect,  because  the  two-scorpions-in-a-bottle 
situation  of  our  day  produces  a  context  for  theopera- 
tionoif'espionage  in  the  coTmnon  interest  Qjrhothjjdes 
^^Hch  has  never  existed_b£fQre. 

This  is  what  I  want  us  to  concentrate  on,  to  see  if  we 
can  detect,  in  default  of  the  achievement  of  an  interna- 
tional system  of  inspection,  some  possibility  of  what  I 
might  call  reciprocally  tolerated  espionage.  This  would 
be  only  second  best,  of  course,  to  the  assurances  against 
surprise  attack  which  could  be  provided  by  an  ^ee- 
ment  for  international  inspection,  the  matter  on  whfchi,^^ 
I  understand,  my  friend  Roland  Stanger  is  going  tp  ' 
speak  shortly. 

Now  on  the  basis  of  the  facts  finally  admitted  by  the 
United  States,  ladies  and  gentlemen,  the  charge  that 


the  United  States  violated  international  law  in  the  U-2 
incident  must  rest,  it  seems  to  me,  on  one  or  other,  or 
both,  of  two  grounds.  It  is  rather  important,  however, 
to  distinguish  these  grounds  from  each  other.  One  is 
the  ground  of  territorial  intrusion — ^flight  over  the  air 
space  of  the  Soviet  Union;  the  other  is  the  ground  of 
espionage,  and  of  course  a  main  drive  of  Professor 
Wright's  paper  has  been  that  espionage  as  such  is  illegal 
in  peacetime.  Now,  I  don't  want  to  make  any  question, 
nor  did  the  United  States  Government,  that  there  was  a 
violation  of  international  law  in  the  U-2  case  in  respect 
of  the  territorial  intrusion.  There  is  no  debate  about 
this.  What  is  debatable  is  why,  in  view  of  the  fact  that 
territorial  intrusions  by  one  state  on  the  territory  of 
another  state  are  not  uncommon,  and  give  rise  usually 
only  to  a  minor  commotion,  this  particular  intrusion 
gave  rise  to  so  great  a  crisis,  and  why  even  friends  of 
this  country,  and  some  of  its  own  leaders  of  thought  like 
my  fellow  guest  here  today,  have  taken  such  a  grave 
view  of  the  action  of  the  American  government.  The 
mere  naughtiness  of  a  territorial  intrusion_dQesjQOtjex- 
plain~~all  this. 

The  second  possible  ground  then  is  that  which  Pro- 
fessor Wright  seems  to  pinpoint  for  you  today,  namely, 
the  ground  that  espionage  as  such  in  peacetime  is  illegal 
in  international  law.  This  is  how  I  have  understood  Pro- 
fessor Wright's  article  in  the  American  Journal  of  Inter- 
national Law  on  the  U-2  incident.^  And  this  is  how  I 
understood  him  this  afternoon.  Perhaps  if  I  am  migun- 
ctgrstanding^im,  he  will^orrgctjTne.  But  I  ao  wish  to 
say  that  if  he  is  separating  out  peacetime  espionage  as 


itseK  an  international  delinquency  of  the  state  permit- 
ting it,  even  if  there  is  no  illegal  territorial  intrusion, 
then  I  must  register  an  almost  complete  dissent  from 
his  view.  I  find  no  support  for  such  a  view  except  per- 
haps some  dicta  in  ex  parte  Quirin,^  and  in  the  Dutch 
case,  re  Flesche;  ^  and  these  are  far  from  decisive  of  so 
important  a  question.  I  find  no  support  for  it  in  the 
practice  of  states.  For  example  I  find  no  attempts  of 
aggrieved  states,  after  the  spying  state  has  disowned 
its  spy,  to  shift  home  responsibility  for  the  espionage  to 
the  spying  state;  yet  surely  if  espionage  were  a  state 
dehnquency  in  itself  the  aggrieved  state  would  not  al- 
ways have  been  content  to  take  such  disclaimers  at  their 
face  value. 

I  throw  in  as  seeming  to  me  to  contradict  such  a  view 
that,  according  to  the  principle  stated  in  the  Lotus 
Case*  it  is  for  those  who  assert  the  existence  of  a  rule  of 
law  restricting  state  activity  to  show  that  such  a  restric- 
tive rule  exists.  And  in  any  case  it  is  not  a  self^gYideDily 
sound  approach  to  the  newish  problems  of  peacetime 
espionage  to  assume  that  it  must  be  unlawful  unless  it 
can  be  justified  on  some  specific  grounds.  In  face  of  a 
situation  of  such  rapid  technological,  strategic,  and 
psychological  change  it  seems  to  ilie  to  be  particularly 
important  rather  to  approach  the  matter  by  asking 
whether  there  are  any  principles,  manifesMnjJie  prao- 
tice  of  states,  which  evidence  any  existing  restrictive 
rules,  or  any  suflBciently  close  analogies.  With  the  great- 
est respect,  I  can  at  present  find  none.  There  are,  of 
course7"alot  of  cases  to  which  Professor  Wright  refers 
concerning  territorial  intrusions,  concerning  the  exer- 


cise  by  one  state's  officers  of  governmental  functions  on 
the  territory  of  another  state,  Hke  Hberating  prisoners 
from  jails,  or  cases  of  diplomats  abusing  their  privileges 
and  immunities  by  engaging  in  espionage.  In  such 
cases,  however,  the  delinquency  arises,  in  my  submis- 
sion, not  from  the  espionage  but  from  the  collateral 

Nor,  ladies  and  gentlemen,  isthis  a  merequibble 
between  lawyers.  For  in  the^uture  which  is  before  us 
the  cases^^r  espionage  where  there  is  no  collateral 
illegahty  are  the  very  cases  likely  to  be  most  vital  for 
the  future  of  mankind.  Because,  with  satellites  like 
Midas,  and  other  technical  developments,  we  are  ap- 
proaching a  situation  in  which  the  military  reconnais- 
sance function  can  be  exercised  from  outer  space  or 
from  the  periphery  of  territorial  waters,  and  there  will 
be  no  collateral  illegality  involved  in  the  major  spying 
activities.  At  this  point,  the  question  that  Professor 
Wright  is  either  leaving  ambiguous  or  is  resolving  too 
confidently  against  the  legality  of  peacetime  espionage 
as  such  (and  on  which  I  dissent)  will  become  a  very 
crucial  one.  It  is  whether,  a^artftomcollatgral  illegahty 
— there  being  for  example  no  territorial  intrusion  when 
you're  in  outer  space — espionage  is  a  dehnquency  of 
the  state  which  engages  in  it.  My  respectful  submis- 
sion, Mr.  Chairman,  is  that  as  the  law  now  stands,  there 
is  no  sufficient  warrant  for  saying  that  international  law 
does  not  permit  state-authorized  espionage  in  peace- 

I  am,  of  course,  with  Professor  Wright  in  saying  that 
clearly  no  such  state  dehnquency  is  involved  in  wartime 


espionage.  The  main  effect  of  such  espionage  is  that  it 
places  the  individual  in  a  legally  exposed  position,  as  it 
were,  without  the  protection  of  his  own  state,  to  the 
legal  measures  of  the  aggrieved  state.  Professor  Wright 
recognizes  that  there  is  no  state  delinquency  in  war- 
time relations,  and  I  am  adding  the  footnote  that  I  also 
believe  that  there  is  no  state  dehnquency  in  peacetime 
relations,  if  no  collateral  illegality  such  as  intrusion  on 
territory  is  involved.  If,  as  I  think,  there  is  here  an 
absence  of  any  prohibitive  rule,  what  is  left  for  us  to 
consider  (and  no  doubt  we  ought  to  consider  it)  is 
whether  there  should  be  a  rule  prohibiting  such  peace- 
time espionage. 

This  is  a  question  of  how  the  law  should  be  changed 
or  developed.  And  before  we  begin  or  even  try  to  an- 
swer this  kind  of  question  we  must  bring  to  reacknowl- 
edgment  (for  you  all  know  these  things  of  which  I  am 
now  going  to  speak)  some  of  the  elements  of  the  dy- 
namic change  in  which  the  law  of  espionage,  such  as  it 
is,  now  has  to  operate.  We  may  thus  bring  into  the 
matrix,  or  backdrop,  of  this  branch  of  the  law,  reahties 
which  have  never  before  been  operative  upon  it,  and 
which  may  therefore  radically  influence  our  outlook  on 
the  part  of  the  law  of  espionage  which  still  has  to  be 
worked  out. 

There  have  been,  for  example,  within  the  time  of 
even  the  youngest  damsel  among  you,  most  drastic 
changes  of  a  psychological  nature  affecting  the  cen- 
ters of  international  decision-making,  whether  in  Mos- 
cow, in  Washington,  or  in  other  capitals.  The  most 
drastic  of  these  is  that  there  is  a  common  interest  in  all 


of  them  in  avoiding  the  use  of  nuclear  weapons;  and 
this  psychological  fact  goes  into  every  decision  that  has 
to  be  made.  Now  the  conclusion  is  sometimes  drawn 
from  this  that,  sincere  p^fl^i)fJlsiIjgjEes^^  is 

so  grearto~evefyBody,  they  will  never  be  used,  so  that 
war  is  already  a  thing  of  the  past.  This  is  a  dangerous 
half-truth.  The  only  truth  in  it  is  that  this  has  become  a 
psychological  factor  in  all  decision-making. 

Along  with  this  important  psychological  change,  and 
also  operating  constantly,  is  the  widening  and  dis- 
persal of  the  directions  of  state  concern  with  espionage 
at  both  the  active  and  passive  ends.  And  along  with 
this  come  changes  in  men's  attitudes  towards  the  ter- 
ritorial domain  of  states  which  are  now  in  full  flow.  Any- 
one who  is  familiar  with  the  vast  and  growing  literature 
on  outer  space,  on  the  problems  of  reconnaissance  from 
outer  space,  the  problem  of  the  subjacent  state  and  the 
satellite  or  outer-space  vehicle,  quite  apart  from  tlie- 
fact  that  foreign  civil  aircraft  constantly  fly  over  the 
territory  of  most  states — anyone  aware  of  these  things 
must  also  know  that  territorial  sovereignty  in  the  old 
sense  of  full  psychological  sacrosanctity  Js  no  longer 
^ith  us.  There  is  in  the  background  too,  psychologically, 
what  I  have  called  elsewhere  the  depersonalization  of 
weapons  and  the  processes  of  killing,  reinforced  by 
•  ideological  propaganda. 

On  the  technological  side,  any  projection  of  the  law 
of  espionage  must  surely  have  in  mind  the  revolution  in 
human  communication  that  we  are  facing  today.  Espio- 
nage and  its  law  grew  up  when  communication  was 
mostly  face  to  face,  or  by  physical  writing,  by  carriage, 


on  foot,  or  on  horseback.  Obviously,  we  must  do  a  great 
deal  more  thinking  in  an  age  which  can  achieve  in- 
stantaneous radio  communication  by  the  use  of  tiny, 
secretly  disposed  instruments;  which  can  transfer  sound 
and  images  by  bouncing  waves  off  the  ionosphere;  and 
which  can  produce  satellites  capable  of  photographing 
from  great  and  immunity-giving  heights,  and  craft  ca- 
pable of  probing  laterally  from  outside  territorial  wa- 
ters. Such  developments  would,  in  any  case,  prevent  us 
any  longer  from  arguing  mechanically  from  the  tradi- 
tional rules  about  maritime  espionage  to  the  conditions 
of  modern  conflict.  But  at  the  very  same  time,  the  espio- 
nage situation  itself,  if  I  may  so  speak  of  it,  is  being 
transformed.  The  kinds  of  information  that  we  are  ac- 
customed to  think  that  spies  seek  are  changed  by  the 
nature  of  modem  warfare,  just  as  the  kinds  of  contra- 
band have  changed  that  states  want  to  seize  in  war- 

Let  me  remind  you,  so  that  we  are  warned  about  get- 
ting too  far  behind  the  times,  that  as  recently  as  1909 
the  leading  thinkers  of  the  major  naval  powers  were 
suflSciently  ill-advised  to  declare  that  certain  kinds  oF 
commodities  could  never  be  of  warUke  use,  and  there- 
fore could  never  be  contraband.  As  late  as  1909,  they 
included,  bless  my  soul,  industrial  diamonds,  rubber, 
silk,  and  ( I  add  in  parenthesis )  perhaps  appropriately, 
nuts!  These  are  commodities  which  in  1909  couldn't 
conceivably  (they  said)  be  useful  for  war.  And  I  am 
reminded,  too,  of  the  Law  OflBcers  of  the  British  Crown 
back  in  1854  who  were  asked  to  advise  whether  a 
British  citizen,  who  was  professor  of  science  at  the  Mos- 


cow  University  while  Britain  was  at  war  with  Russia, 
might  be  guilty  of  treasonous  activities.  The  learned 
Law  OflBcers  used  these  delightful  words:  that  of 
course  if  he  continued  in  the  military,  naval,  or  political 
service  of  Russia  this  would  be  treasonous.  But  (they 
said)  professors,  including  professors  of  science,  were 
different.  Even  by  working  at  a  Russian  University  such 
professors  would  not  be  guilty  of  any  disloyalty;  for, 
said  the  Officers  loftily,  "civilized  nations  do  not  make 
war  against  literature  or  science,  nor  do  they  desire  to 
prevent  the  progress  of  science  even  in  the  country 
of  an  enemy."  ^  We  must,  I  venture  to  think,  avoid  this 
kind  of  anachronism.  For  our  very  survival  now  depends 
on  being  contemporaneous  in  our  thinking,  and  not 
pretending  that  we  can  either  govern  or  preserve  our- 
selves in  a  transformed  world,  by  the  use  of  notions  no 
longer  apphcable. 

This  point  also  bears  on  the  question  of  the  effect  of 
disclaimer  of  a  spy  by  the  sending  state.  Professor 
Wright  has  mentioned  this  as  being  the  gravamen  of 
much  criticism  of  the  United  States  government.  I  may 
say  I  am  not  always  in  the  position  of  supporting  a 
position  of  the  United  States  government,  or  of  any 
other  government.  I  try  always  to  keep  a  certain 
scholarly  independence.  Yet  I  think  that,  in  the  case  of 
the  U-2  incident,  the  United  States  government  has  had 
a  raw  deal,  even  from  some  prominent  thinkers.  Clearly, 
when  the  secret  agent's  equipment  consisted  of  oral 
instructions,  some  invisible  ink,  a  memorized  code  word, 
and  a  couple  of  memorized  addresses,  together  with  a 
phial  of  poison  in  his  breast  pocket  for  emergencies, 


this  is  one  espionage  situation,  isn  t  it,  ladies  and  gentle- 
men? And  in  this  kind  of  situation,  it  is  true  that  govern- 
ments have  regularly  disowned  their  spies  and  they 
have  been  able  to  do  so  without  looking  too  silly.  Why 
did  they  disclaim?  Professor  Wright  seems  to  assume 
that  it  was  because  peacetime  espionage  was  a  state 
delinquency;  and  Professor  Wright  is  then  at  a  loss  to 
understand  when  Oppenheim  speaks  of  espionage  in 
peacetime  as  lawful  in  the  same  breath  as  he  observes 
on  the  regular  state  disclaimer  of  the  spy.  The  fact  is 
that  Oppenheim  does  treat  peacetime  espionage  as 
lawful;  and  I  follow  him  in  this.  When  Oppenheim 
says  ^  that  the  sending  state  "cannot"  acknowledge  its 
spy,  he  was  uttering  a  psychnlngical  *Vannnt/'  not  (as 
Professor  Wright  assumed)  a  legal  "cannot."  The  psy- 
chological point,  as  I  see  it,  is  that  the  espionage  situa- 
tion is,  ladies  and  gentlemen,  like  some_^iia±iQllS_that 
occasionally~arise  between  friends  and  even,  I  under- 
stffidr^Setw^eh  liusband  and  wife,  when  one  of  them 
does  the  sort  of  thing  about  whi(3i  jt  isn^t  reallyiiinyjiise 
^^Jthgro-lotalk.  The  disowner  of  the  spy  is  (as  it  were) 
a  way  of  forestalling  the  discomfort  of  negotiations 
which  could  in  any  case  only  be  fruitless;  the  practice 
of  disowner,  therefore,  may  have  no  particular  signifi- 
cance at  all  in  determining  what  the  law  is. 

Contrarilv,  I  have  already  put  it  to  you  that  if  peace- 
time espionage  as  such  really  did  involve  state  dehn- 
quency,  it  would  be  a  most  surprising  thing  that  ag- 
grieved states,  when  there  was  such  a  dehnquency, 
should  apparently  have  allowed  the  sending  state  to 
acquire  immunity  from  its  consequences  merely  by 


making  a  disowner.  It  is  not  the  general  habit  of  ag- 
grieved states  to  take  the  mere  ipse  dixit,  the  bare 
word,  of  the  culprit  state  that  it  hasn't  been  naughty 

But  I  must  not  Hnger  further  onjhis.  I  want  to  come 
to  my  concluding  point,  which  is  really  a  main  point. 
Professor  Wright  dealt  with  the  various  alibis  or  de- 
fenses put  forward  by  the  United  States  Government, 
and  I  don't  want  to  go  into  their  merits.  It  seems  to 
me  that  Washington's  reply,  or  the  gist  of  Washington's 
reply,  was,  on  the  face  of  it,  a  very  strange  one.  It  was 
necessary,  as  the  President  said,  to  get  information 
from  behind  the  Iron  Curtain  for  lessening  the  danger 
of  surprise  attack  against  the  democratic  world;  and 
"no  one  wants  another  Pearl  Harbor."  And  Mr.  Gromyko 
made  the  expected  assault  on  this,  making  it  look  very 
ridiculous  by  saying,  in  effect — If  each  state  is  entitled 
to  judge  whether  its  fear  justifies  particular  measures, 
wouldn't  there  be  a  commotion  in  the  United  States  if 
Soviet  spy-craft  suddenly  appeared  over  Chicago? 
Well,  Mr.  Gromyko  had  to  be  reminded  ( as  indeed  he 
was  by  the  American  representative )  that  there  would 
not  necessarily  have  been  much  of  a  commotion,  be- 
cause the  very  start  of  all  this  business  was  a  proposal 
by  President  Eisenhower  which  could  have  permitted 
Soviet  spy-flights  over  Chicago.  In  other  words,  when 
you  penetrate  a  little  below  the  face_valiifi.-X)£Jthfise 
arguments,  you  come  to  the  thesTjJthnt  I  will  now 
tentativelyTormulate,  and  which  I'm  sorry  Washington 
didn't  formulate  for  itself.  Nevertheless  its  worth  our 
attentionTTjf  you^oltot  have  a  system  of  international 


inspection  and  if  you  cant  get  one  (and  I  think  it  is 
quite  likely  that  we  cant)  then  the  function  which 
international  inspection  is  supposed  to  serve  still  needs 
fulfilling.  You  may  not  be  able  to  fulfill  it  to  the  opti- 
mum extent  by  reciprocally  tolerated  espionage,  but 
you  may  be  able  to  reduce  the  dangers.  It  is  not  certain 
that  you  can,  but  the  possibihty  surely  is  worth  ex- 

The  diflSculty  in  seeing  this  arises  frnm  being  Vjirlp- 
bound  by  history.  Espionage,  historically,  before  this 
present  age  in  which  all  ot  us  are  placed  in  peiiLbyjhe 
nuclear  balance  ot  terror,  has  always  been  a  unilateral, 
"selfish,  self-regardingT^iviswe  acti\aty  used  by^^^ne 
state  against  another  to  impose  JtS-ends-on^  that  other. 
And  in  this  sense  it  is  linked,  as  Quincy  Wright  in- 
sisted, with  self -regarding  intervention.  But  we  are  now 
in  an  age  in  which Jboth  sides  have  a  common  interest 
in  neither  being  able  to  make  a  surprise  attack.  This  is 
why  the  problem  of  an  international  inspection  system 
is  very  largely  a  problem  of  building  into  some  interna- 
tional system  an  adversary  system  of  espionage  for  each 
side.  And  I  feel  confident  (though  I  have  not  discussed 
it  with  him)  that  my  successor  on  this  rostrum  will  tell 
you  that  one  basic  difficulty  (among  many  others)  in 
the  inspection  problem  is  that  of  giving  each  side  the 
confidence  that  the  system  contains  a  component  of 
built-in  espionage  that  is  rehable  from  its  own  point  of 
view.  So  that,  while  we  think  about  international 
inspection  (and  the  word  "intemationar  has  a  halo 
around  it  and  makes  us  feel  good),  we  had  better  re- 
member that  a  good  system  of  international  inspection 


must  be  basically  a  system  of  reciprocal  espionage,  with 
a  seal  of  international  umpireship  on  it. 

Suppose  we  cannot  get  this,  ladies  and  gentlemen. 
Must  we  then  just  give  up  thinking  about  the  job  of 
mitigating  for  both  sides  the  dangers  of  nuclear  attack? 
Isn  t  this  function  still  a  function  we  must  try  to  per- 
form, by  whatever  methods  are  available?  And  was  not 
basically  the  position  of  your  government,  if  you  only 
probe  it,  and  give  it  perhaps  a  teeny,  weeny,  httle  bit 
of  reinterpretation,  the  standpoint  which  I  am  suggest- 
ing to  you?  Is  not  the  rational  basis  of  your  govern- 
ment's position  this :  that  a  second-best  solution,  at  any 
rate  one  worth  considering,  would  be  for  the  two  sides 
to  reciprocally  tolerate  espionage.  It  is  only  up  to  this 
point  that  I  can  take  you  in  the  time  available,  except 
to  try  and  give  you  a  foreshortened  glimpse  of  two 
consequential  problems. 

One  is  this.  If  we  recognize  that  some  part  of  espio- 
nage activity  in  our  existing  world  represents  not  the 
divisive  interest  of  each  side  against  the  other,  but  the 
common  interest  of  both,  then  it  becomes  crucial  to 
recognize  that  espionage  may  have  either  to  be  frowned 
upon,  or  to  be  approved  according  to  the  circumstances. 
Spying  may  serve  the  common-interest  function  (which 
I  might  call  "the  red-light  function")  of  warning  the 
spying  state  of  the  other's  preparations  for  surprise 
attack.  Or  it  may  serve  the  divisive  and  destructive 
function  (which  I  may  call  the  "green-Bght  function*) 
for  which  it  may  still  also  be  used  in  our  time,  namely, 
that  of  letting  the  spying  side  know  that  the  other  side 
is  momentarily  exposed  to  surprise  attack,  because  of 


the  level  or  disposition  of  its  retaliatory  forces  or  other 
defensive  arrangement.  And  this  equally  applies  to 
espionage  by  aircraft  or  by  orbital  or  space-craft,  or  by 
amphibious  craft  like  the  X-15. 

So  that  if  v^^e  accept  my  main  thought  as  something 
worth  pondering,  we  are  still  only  at  the  beginning  of 
our  problems.  We  still  have  to  come  to  the  question  of 
how  each  side  can  be  sure,  in  a  system  of  reciprocally 
tolerated  espionage,  that  the  craft  of  the  other  are  going 
to  perform  only  the  salutory  red-light  function,  and  not 
the  dangerous  green-light  function. 

And  even  if  we  think,  as  some  do,  that  on  principle 
we  can  distinguish  these  two  aspects  of  inspection  ( and 
therefore  in  my  theory  these  two  aspects  of  espionage 
also),  we  still  have  very  great  difficulties.  How  is  each 
side  going  to  police  the  activity  of  the  other  to  make 
sure  that  craft,  which  should  be  performing  the  red- 
light  function,  are  not  in  fact  performing  the  green- 
light  function?  On  this  point,  after  much  prodding  of 
my  brains,  I  have  only  a  number  of  speculative  ideas — 
into  which  happily  I  have  no  time  to  go. 

1.  Wright,  Legal  Aspects  of  the  U-2  Incident,  54  Am.  J. 
Int'l  L.  836 ff.  (Oct.  1960). 

2.  317  U.S.  1  (1942). 

3.  Nederdanse  Jupjsprudentia  (Netherlands),  No.  548 
( Special  Court  of  Cassation,  1949 ) . 

4.  Case  of  the  S.S.  "Lotus,"  P.C.I.J.,  ser.  A,  No.  10,  p.  74 
(1927),  2  World  Court  Reports  71  (Hudson  ed.  1935). 

5.  3   International   Law   Opinions   34    (McNair   ed. 

6.  1  Oppenheim,  International  Law,  §  455  (3d  ed.). 


Space  Espionage  and  World  Order: 
A  Consideration  of  the 
Samos-Midas  Program 

Richard  A.  Falk  * 

Hon.  Victor  Anfuso,  Member  of  the  House  of  Representatives, 
N.  Y.:  "Mr.  Khrushchev  made  a  very  fantastic  remark  that  he 
saw  no  angels  in  the  heavens. 

"Do  you  see  any  challenge  to  God  in  this  venture  into  outer 

Dr.  T.  Kieth  Glennan,  National  Aeronautics  and  Space  Ad- 
ministration: "No  sir." 

— Missile  Development  and  Space  Sciences,  86th  Cong.,  1st 
Session,  House  Committee  on  Science  and  Astronautics. 


HE  EFFORT  of  the  United  States  to  improve  its 
knowledge  of  Soviet  military  installations  is  well  known. 
It  has  taken  a  variety  of  forms:  the  release  of  camera- 
carrying  balloons,  the  "open  skies"  proposal,  U-2 
overflights,  and  more  recently  ( if  Soviet  charges  are  to 
be  accepted),^  reconnaissance  observation  by  subma- 

*  Associate  Professor  of  International  Law,  Woodrow  Wilson 
School  of  Public  and  International  A£Fairs,  and  Research  Associate, 
Center  of  International  Studies,  Princeton  University. 

lines  operating  within  Soviet  territorial  waters.  None  of 
these  methods  met  (evidently)  with  enduring  success. 
Hopes  are  high,  however,  that  the  Samos  and  Midas 
satellite  program  will,  at  last,  do  the  job. 

The  plan  is  to  launch  several  Samos  satellites  in  polar 
orbit  from  Port  Arguello,  Cahfornia,  sometime  before 
the  end  of  1962.  The  polar  orbit  assures  passage  over  a 
large  portion  of  Soviet  territory.^  The  Samos  will  carry 
photographic  and  TV  equipment  that  permits  percep- 
tion of  surface  objects  equivalent  to  what  the  human 
eye  sees  from  one  hundred  feet.  This  should  be  enough 
to  pick  up  troop  concentrations,  airfields,  missile  sites, 
and  much  other  useful  information.  In  addition  to  the 
work  of  detection,  the  Samos  will  perform  a  continuing 
surveillance  role,  since  it  can  discern  and  report  on 
military  buildups  taking  place  on  the  ground. 

The  Midas  satellite  plays  supplementary  roles.  Availa- 
ble information  indicates  that  Midas  is  designed  to 
facilitate  the  use  of  outer  space  for  global  communica- 
tion systems  and  to  detect  and  report  on  rocket  launch- 
ings.  On  October  21,  1961,  at  Port  Arguello,  California, 
the  Air  Force  launched  in  polar  orbit  a  Midas  IV  satel- 
lite (Project  West  Ford)  to  distribute,  on  a  test  basis, 
millions  of  copper  wires  in  a  widening  band  that  will 
cover  the  entire  globe;  the  wires  will  slowly  descend  to- 
wards earth  until  they  reach  the  atmosphere,  where 
they  are  expected  to  bum  up.^  Scientists  throughout  the 
world,  including  Americans,  have  protested  against 
Project  West  Ford  on  the  ground  of  its  interference 
with  astronomical  uses  of  outer  space.*  Midas  IV  illus- 
trates the  interdependence  of  various  uses  of  outer 


space,  and  the  bearing  of  the  claim  of  one  state  upon 
the  preferred  uses  of  other  states. 

Although  Midas  IV  has  military  sponsorship,  its  exact 
mihtary  role  is  not  clear.  The  main  objective  of  the 
Midas  program,  however,  is  to  put  into  outer  space 
satellites  that  carry  instruments  capable  of  registering 
^  rays  emitted  by  gases  that  accompany  rocket  launch- 
ings.  Thus  Midas  will  watch  over  the  rocket-launching 
sites  that  Samos  finds.  In  time,  Midas  will  carry  instru- 
ments so  sensitive  that  they  will  be  able  to  inform  the 
United  States  of  the  number  of  missiles  fired  and  their 
general  direction,  as  well  as  their  approximate  point  of 
origin.  This  will,  it  has  been  suggested,  aid  American 
experts  to  evaluate  the  progress  of  Soviet  rocket  activi- 
ties with  far  greater  precision  than  is  at  present  pos- 
sible.^ The  Discoverer  satellite,  designed  to  utilize  con- 
tainers capable  of  bringing  the  photographs  back  to 
earth,  is  also  relevant  to  this  program  of  space  observa- 
tion. And  a  Soviet  commentator  has  suggested  that  the 
supposedly  civilian  Tiros  satelHte  used  to  photograph 
cloud  cover  in  the  service  of  meteorological  study  has 
also  photographed  Soviet  and  Chinese  territory  on  be- 
half of  United  States  mihtary  intelligence  agencies.* 

The  satelhte  program,  then,  seems  to  offer  the  United 
States  a  valuable  inteUigence  payoff  that  it  has  not  been 
able  to  secure  by  other  means.  Our  intelhgence  efforts 
have  evidently  had  difficulty  penetrating  the  heavy 
veils  of  secrecy  that  hang  over  Soviet  mihtary  activity. 
In  contrast,  the  competitive  struggle  for  legislative  ap- 
propriations in  the  United  States  leads  to  pubhc  dis- 
semination of  mihtary  information,  including  missile 


sites.  Furthermore,  Soviet  intelligence  operating  by 
"conventionar  methods  seems  to  be  more  successful  in 
the  United  States  than  ours  is  in  Russia — although  this 
is  highly  speculative.  In  any  event,  it  is  a  view  com- 
monly held  in  the  United  States  that  "the  intelligence 
gap"  in  favor  of  the  Soviet  Union  is  one  of  the  serious 
threats  to  the  survival  of  the  West.^  The  particular  qual- 
ity of  Samos-Midas  intelligence  emphasizes  its  relation 
to  national  security.  For  the  advance  warning  of  sur- 
prise attack  given  by  Midas,  or  at  least  the  expectation 
of  such  advance  warning,  would  increase  the  destructive 
power  of  the  second  strike  and,  so  the  reasoning  goes, 
dissuade  further  an  enemy  from  launching  a  surprise 

Of  course,  the  Soviets  purport  to  see  things  dijBFer- 
ently.  They  view  Samos-Midas  as  an  intelligence  effort 
that  helps  the  United  States  to  plan  a  successful  sur- 
prise attack.  Why  else  are  we  seeking  to  observe  missile 
sites?  A  second-strike,  defensive  use  of  nuclear  missiles 
would  choose  cities  and  industrial  centers  as  its  prob- 
able targets.  Only  a  surprise  attack  selects  missile- 
launching  sites  as  its  target,  the  goal  being  to  eliminate 
the  enemy's  retaliatory  capabihty.  If  the  second-strike 
capacity  is  minimal,  retahation  becomes  a  futile  ges- 
ture; surrender  seems  preferable,  and  the  surprise  at- 
tack is  fully  successful.  In  any  event,  the  force  of  the 
second  strike  is  cut  down. 

The  strategic  importance  of  observational  intelli- 
gence to  the  cold  war  makes  this  subject  matter  an 
intractable  area  for  isolated  negotiation.  We  have  seen 
increasingly  that  neither  the  Soviet  Union  nor  the 


United  States  is  likely  to  forego  strategic  advantages  in 
the  cold  war  in  order  to  promote  the  cause  of  world 
order.  One  need  only  refer  to  the  1961  Soviet  resump- 
tion of  nuclear  testing  or  the  1956  Hungarian  interven- 
tion and  to  the  initiation  in  1946  of  nuclear  testing  by 
the  United  States  on  the  high  seas  and  to  its  participa- 
tion in  the  armed  invasion  of  Cuba  in  April,  1961,  to 
sense  the  tendency  of  cold-war  pressure  to  overcome 
considerations  favoring  restraint.  Seen  in  this  hght,  the 
prospects  are  indeed  slim  for  depoHticizing  a  contro- 
versy over  the  legitimacy  of  ground  observation  from 
outer  space. 

One  can  smnmarize  the  extra-legal  conditioning  of 
the  Samos-Midas  program,  then,  by  pointing  to  the  op- 
posed military  strategies  and  contradictory  interpreta- 
tions of  motive  on  the  part  of  the  cold- war  rivals.  The 
U.S.S.R.  regards  reconnaissance  from  outer  space  as  a 
threat  to  its  survival,  because  it  takes  the  pmpose  to  be 
the  locating  of  targets  for  a  thermonuclear  surprise  at- 
tack and  the  immediate  effect  to  be  the  impairing  of  a 
tradition  (with  Czarist  credentials)  of  secrecy  about 
mihtary  affairs.  The  United  States,  in  contrast,  links  its 
survival  to  an  adequate  warning  system  that  will  stabi- 
lize deterrence  and  discoinrage  surprise  attack. 

How  is  such  a  conflict  to  be  resolved?  Is  it  a  discre- 
tionary right  of  the  United  States  to  orbit  reconnais- 
sance sateUites  over  the  Soviet  Union?  And  is  it  a  dis- 
cretionary right  of  the  Soviet  Union  to  shoot  them 
down  if  it  can?  Have  we  no  way,  other  than  by  force,  to 
vindicate  or  refute  such  a  claim  on  the  frontier  of 
technological  development  in  outer  space?  How  do  we 


attain  limits  for  national  conduct  in  an  area  where 
there  are  neither  authoritative  practice  nor  converg- 
ing interests  to  support  an  agreement?  This  essay  can 
not  give  answers  to  these  questions.  It  tries,  instead,  to 
describe  the  wider  importance  of  the  Samos-Midas  pro- 
gram for  world  order.  And  it  suggests  a  technique  of 
evaluation  that  enlarges  the  horizon  of  relevance  be- 
yond the  confines  of  mihtary  strategy.^  This  approach 
aims  at  the  development  of  a  model  of  analysis  for 
the  role  of  law  in  the  cold  war;  it  is  admittedly  pre- 

How  shall  we  characterize  the  activity  of  the  Samos- 
Midas  sateUite  program?  Is  it  "espionage*?  Does  it 
make  any  difference  whether  it  is  or  not?  Traditional 
definitions  of  espionage  ^  emphasize  its  clandestine 
character,  and  one  can  argue  that  the  "openness"  of 
Samos-Midas  activity  puts  it  outside  the  scope  of  espio- 
nage. This  argument  might  present  Samos-Midas  as  a 
unilateral  attempt  to  do  what  the  open  skies  proposal 
sought  on  a  bilateral  basis.  Such  an  interpretation 
would  be  more  persuasive  if  it  were  coupled  with  a  pro- 
posal for  the  internationalization  of  the  activity  under 
United  Nations  control.^"  Observation  from  outer  space, 
in  that  case,  would  become  assimilated  into  the  special 
needs  for  peace  maintenance  in  a  nuclear  age.  This  ap- 
proach deserves  special  consideration  and  supports  a 
careful  differentiation  between  the  potentiaV^  role  of 
Samos-Midas  activity  and  the  egoistic,  secret  use  of 
traditional  espionage. 

Such  an  interpretative  problem  parallels  the  Soviet 
claim  that  outer  space  should  be  available  only  for 


non-military  uses  (except  in  the  event  of  war) ,  and  that 
Samos-Midas  is  a  military  use — related  to  the  mihtary 
effort,  financed  and  administered  by  the  United  States 
armed  forces.  As  such,  it  is  an  abuse  of  outer  space, 
since  it  transforms  it  into  a  theater  of  military  opera- 
tions." The  claim  to  use  outer  space  for  peacetime  mili- 
tary purposes  sets  a  very  dangerous  precedent.  We  must 
keep  in  mind  the  strength  of  reciprocity  and  estoppel  in 
an  area  of  behavior  without  clear  legal  norms.  A  use  by 
A  warrants  an  equivalents^  use  by  B  and  precludes 
objection  by  A.  Thus  A's  use  establishes  a  permissive 
norm.  This  basic  pattern  of  international  lawmaking 
should  encourage  sober  reflection  in  advance  of  uni- 
lateral claims  asserted  at  the  frontiers  of  mihtary  tech- 
nique. For  instance,  looking  back  on  nuclear  testing, 
one  wonders  if  the  United  States  would  not  have 
helped  its  cause  on  every  level  by  pressing  for  a  test 
ban  or  limitation  in  advance  rather  than  by  following  a 
unilateral  pattern  of  claim,  subsequent  estoppel  and 
eventual  anxious  dismay. 

Samos-Midas  gathers  and  transmits  its  information 
without  entering  the  target  state. ^^  This  means  that 
there  is  no  interference  with  the  administration  of  the 
national  society.  The  effort  to  recruit  and  catch  spies 
is  itself  one  of  the  objectionable  aspects  of  espionage 
activities.  Observation  from  outer  space  by  unmanned 
satellites  does  not  inject  an  information-gathering  for- 
eign agent  into  the  lifeblood  of  the  social  order.  A  lead- 
ing commentator  suggests  the  analogy  between  Samos- 
Midas  and  the  permissible  photographic  observation  of 
shore  objects  from  aircraft  overflying  the  high  seas." 


However,  this  legitimation  is  qualified  by  the  general 
duty  to  use  the  high  seas  in  a  manner  that  does  not 
infringe  upon  the  rights  of  the  shore  state,  and  further 
by  the  evident  right  of  the  observed  state  to  view  such 
observation  as  "aggressive"  or  "mihtary"  and  take  ap- 
propriate protective  measures.^^  This  description  of  "the 
law"  informs  us  only  about  the  rhetorical  techniques 
used  by  participants  in  a  decentralized  legal  order 
faced  with  a  conflict  between  claim  ( Samos-Midas ) 
and  objection  (Soviet  retaliation).  As  will  be  shown, 
the  international  legal  order  possesses  techniques  for  a 
decentralized  appraisal  of  legitimacy  that  apphes  to  the 
Samos-Midas  controversy.  The  factor  of  non-inter- 
ference appears  to  support  an  evaluation  in  favor  of  the 

It  has  been  universally  conceded  that  a  nation  can 
forbid  others  to  photograph  strategic  objects  and 
events  taking  place  within  its  territory.  All  nations,  in- 
cluding the  United  States  and  the  Soviet  Union,  strictly 
regulate  and  punish  activity  on  the  ground  which  seeks 
to  obtain  the  same  kind  of  information  that  Samos  and 
Midas  collect  from  outer  space.  The  Chicago  Conven- 
tion on  International  Civil  Aviation,  uncontested  na- 
tional legislation,  and  the  U-2  incident  convincingly 
extend  this  power  of  prohibition  to  unauthorized  infor- 
mation-gathering conducted  in  territorial  airspace."  It 
seems  generally  agreed  that  unauthorized  observation 
and  photographing  falls  within  the  developing  con- 
cept of  "espionage."  In  fact,  even  our  newspapers  have 
dubbed  Samos-Midas  "space  spies,"  "spy  in  the  sky," 
and  the  like.  State  practice  and  general  usage  both 


argue  for  the  treatment  of  unauthorized  aerial  ob- 
servation as  "espionage,"  subject  to  regulation  by  the 
victim  state.^® 

It  is,  of  course,  possible  to  stress  the  extra-territorial 
character  of  Samos-Midas  activity.  One  emphasizes  the 
territorial  limits  of  national  sovereignty  and  the  non- 
territorial  status  of  outer  space.  But  for  the  state  that 
is  the  target  of  observation  it  matters  Httle  where  the 
observer  locates  himself.  The  functional  quahty  of  espi- 
onage from  outer  space  is,  from  the  viewpoint  of  infor- 
mation yield  at  least,  no  diflFerent  from  espionage  in 
airspace.  Professor  Katzenbach  has  perhaps  overstated 
this  point  when  he  suggests  that  the  height  of  the  activ- 
ity is  of  no  relevance  to  a  proper  determination  of  its 
vahdity."  Clearly  the  trend  is  toward  the  replacement 
of  mechanical  criteria  by  contextual  judgments  as  the 
basis  for  the  proper  dehmitation  of  jurisdictional  com- 
petence. Rather  than  rely  on  the  physical  locus  of  con- 
stituent acts,  or  on  some  other  isolated  qualifying  ele- 
ment of  the  facts — ^for  instance,  the  nationahty  of  the 
actor — it  is  now  thought  better  to  make  a  comprehen- 
sive appraisal  of  the  reasonableness  of  the  particular 
claim  by  reference  to  all  aflFected  interests.^''  A  jurisdic- 
tional decision,  then,  depends  upon  a  balancing  of  the 
competing  interests  of  claimant  and  protesting  states. 
The  jurisdictional  model  of  decision-making  is  taken 
primarily  from  the  practice  of  national  courts,  but  it  is 
apphcable  here  as  well,  since  executive  officials  of  the 
United  States  are  called  upon  to  decide  whether  to 
make  a  unilateral  claim.  The  process  of  rational  de- 
cision, as  McDougal  has  shown  so  well,  is  structurally 


similar,  regardless  of  where  the  decision-maker  is  lo- 
cated in  the  social  process.^^ 

On  the  basis  of  a  consideration  of  the  Samos-Midas 
plan  it  seems,  as  I  have  said,  prudent  to  characterize  it 
as  "espionage."  This  puts  it  easily  within  the  legislative 
reach  of  Soviet  law.  For  it  is  legitimate  to  prosecute  for 
espionage  even  if  the  defendant  acts  in  foreign  terri- 
tory. The  reach  of  United  States  economic  regulation 
serves  to  illustrate  this  kind  of  a  claim  in  a  situation  in 
which  the  prosecuting  state  has  a  lesser  interest;  ^^  that 
is,  the  extension  of  claims  to  protect  national  security 
has  priority  over  the  extension  of  claims  to  defend  the 
economy.  If  a  state  can  regulate  espionage  taking  place 
in  another  sovereign  state,  then  certainly  it  can  impose 
equivalent  regulation  upon  similar  activity  in  outer 
space.  Giving  the  activity  a  status  of  "espionage" 
makes  the  locus  of  conduct  irrelevant  to  the  legislative 
claim.  It  seems  clear,  then,  that  the  Soviet  Union  has 
legislative  competence  to  characterize  Samos-Midas  as 
"espionage"  and  to  prescribe  appropriate  remedies. 
One  of  the  most  characteristic  features  of  the  interna- 
tional legal  order  is  the  wide  discretion  given  to  a  na- 
tion to  characterize  activity  for  purposes  of  applying  its 
legal  policy.  The  Nottebohm  case  illustrates  the  attempt 
of  a  supranational  tribunal  to  discover  limits  to  this 
power  of  a  nation  to  characterize  in  the  area  of  na- 
tionality. The  case  is  enormously  significant  as  a  chal- 
lenge to  the  tradition  of  decentralization.  The  extension 
of  Nottebohm  thinking  reflects  itself  in  the  "genuine 
link"  requirement  for  merchant  shipping  that  has  found 
its  way  into  the  Geneva  Convention  on  the  Law  of  the 


High  Seas  as  a  rebuflF  to  "flags  of  convenience/* "  With- 
out vertical  institutional  development,  however,  it  re- 
mains to  be  seen  whether  international  order  loses  or 
gains  by  attempts  to  centralize  and  objectify  the  power 
to  characterize.  We  give  up  the  simple  criterion  of  na- 
tional discretion,  and  yet  provide  no  substitute  means 
to  specify  legal  status.  Is  this  not,  then,  a  premature  at- 
tempt to  verticahze  international  legal  order?  Despite 
Nottebohm  it  seems  accurate  to  affirm  the  capacity  of 
nations  to  characterize  activity  that  is  threatening  to 
their  miHtary  security.^*  In  this  respect  we  take  note  of 
the  United  States  claim  of  Air  Defense  Identification 
Zones  as  a  parallel  instance. 

But  in  the  case  of  Samos-Midas — and  this  is  the 
novelty  of  the  situation — the  United  States  supports 
its  claim  by  reference  to  its  miHtary  security.  That  is, 
we  claim  that  the  surveillance  of  the  Soviet  Union  by 
our  satellites  is  an  essential  precaution  against  surprise 
attack.  The  claim,  in  effect,  makes  espionage  from  outer 
space  a  matter  of  self-defense.  Thus,  in  a  formal  sense, 
two  irreconcilable  claims  are  present.  In  a  centralized 
system  this  would  call  for  the  intervention  of  judicial  or 
legislative  action  to  resolve  the  competing  claims  by 
compromise  or  choice.^^  But  what  is  to  be  done  in  a  rela- 
tively decentralized  legal  order? 

The  probable  course  of  conduct  in  a  decentrahzed 
legal  order  will  emphasize  the  maximum  assertion  of 
the  opposed  national  claims  at  each  stage  of  the  con- 
troversy. Thus  the  United  States  will  try  to  orbit  the 
satellites  and  the  Soviet  Union  will  try  to  shoot  them 
down.  However,  a  preferred  course  of  conduct  would 


look  also  to  the  reasonableness  of  the  assertion  of  the 
claim,  given  competing  interests,  and  make  every  ef- 
fort to  justify  it  to  the  target  state.  This  appHes  to  the 
United  States  decision  to  orbit  more  than  to  the  deriva- 
tive Soviet  decision  to  interfere  v^ith  the  satellites.  For 
the  nation  that  disturbs  the  status  quo  in  a  decentral- 
ized legal  order  bears  the  main  burden  for  the  instabil- 
ity that  follows.  The  position  of  the  United  States,  as 
the  leader  of  the  bloc  resisting  the  expansion  of  the 
revolutionary  nations,^®  entails  a  special  national  inter- 
est in  strengthening  international  order.  Therefore  it  is 
with  dismay  that  one  observes  our  government's  pro- 
gressive neglect  to  consider  the  bearing  of  international 
order  upon  national  welfare.  It  is  not  that  we  must 
sacrifice  national  security  to  promote  world  order,  but 
rather  that  we  should  see  whether  the  sacrifice  in  order 
is  worth  the  gain  in  security.  The  U-2  incident,  the 
sponsorship  of  the  Cuban  invasion  of  April  1961,  the 
Connally  Reservation,  and  the  fight  to  keep  Formosa  on 
the  Security  Council  are  instances  in  which  an  overly 
narrow  interpretation  of  national  interest  unnecessarily 
impairs  the  quality  of  contemporary  world  order.  Like- 
wise there  is  no  evidence  that  the  decision  to  put  the 
Samos-Midas  program  into  operation  takes  adequate 
account  of  its  probable  destabilizing  eflPect  on  other 
activity  in  outer  space.  So  far,  outer  space  has  been 
used  compatibly  by  cold-war  rivals  for  peaceful  pur- 
poses.^ It  seems  hazardous  to  make  outer  space  a  part 
of  the  cold- war  arena.  It  is  diflBcult,  without  access  to 
intelligence  appraisals,  to  suggest  the  probable  net  gain 
or  loss  from  Samos-Midas.  Nevertheless,  it  is  possible  to 


urge  a  basis  of  decision  that  considers  the  consequences 
for  world  order  as  well  as  the  gains  for  military  intelli- 

It  is  probably  not  useful  to  debate  "the  legality"  of 
espionage  in  the  traditional  system  of  international  law. 
For  espionage,  as  such,  possesses  the  peculiar  quality 
of  being  tolerated,  but  illegal.^^  This  odd  status,  which 
is  much  like  that  of  prostitution  in  many  European 
countries,  has  encouraged  a  practice  whereby  states 
engage  in  espionage  but  do  not  come  forward  to  defend 
an  agent  who  is  caught  by  the  techniques  of  counter- 
espionage. Consider,  for  example,  the  silence  of  Soviet 
authorities  during  the  long  trial  of  Colonel  Abel,  as  well 
as  the  recent  Soviet  willingness  to  exchange  Powers  and 
Prior  for  Abel.  The  silence  of  the  state  sending  the 
espionage  agent  usually  results  in  the  target  state's  di- 
recting its  sanctions  only  against  the  detected  agent. 
The  employing  state  is  not  drawn  formally  into  the 
espionage  trial,  nor  is  there  any  eflFort  to  impose  legal 
responsibihty  upon  the  state  for  the  espionage  it  has 

However,  the  rules  of  the  game  must  be  observed.  If 
the  espionage  activity  involves  an  independent  viola- 
tion of  the  target  state's  sovereignty,  then  the  sending 
state  makes  itself  vulnerable  to  direct  charges  of  illegal- 
ity. Likewise,  if  the  sending  state  steps  forward  to 
acknowledge  and  defend  its  espionage  ventures,  it 
would  also  seem  to  assume  responsibihty  for  the  illegal 
activity.  It  was  such  an  acknowledgment  which  created 
some  of  the  unusual  problems  raised  by  the  U-2  inci- 


Let  us  consider  now  the  Samos-Midas  program  from 
this  perspective.  First  of  all,  the  program  would  seem  to 
constitute  "espionage"  under  explicit  government  aus- 
pices. Part  of  its  legal  quality  would  depend  upon 
American  motivation,  and  especially  on  the  extent  to 
which  the  information  so  gained  contributes  to  defen- 
sive rather  than  aggressive  policies  of  national  defense. 
That  is,  the  test  for  the  relative  illegality  of  espionage 
rests  to  some  degree  upon  one's  judgment  of  the  end 
being  sought.  However,  in  view  of  the  usefulness  of 
Samos-Midas  for  aggressive  purposes,  primary  responsi- 
bility would  appear  to  devolve  upon  the  United  States. 
The  project  is  an  attempt  to  undermine  the  security 
regulations  of  a  sovereign  state  during  peacetime  and, 
as  such,  would  seem  to  violate  the  independence  of  the 
target  state.  A  strong  argument  on  behalf  of  Soviet  ob- 
jections could  be  made  before  an  impartial  decision- 
maker. The  United  Nations  Security  Council  would  be 
an  appropriate  forum  for  discussion  and  appraisal. 
Characteristically,  as  we  have  said,  the  government 
sponsoring  "espionage"  is  not  exphcitly  connected  with 
its  agents,  and  the  enforcement  state  proceeds  against 
the  agent  as  an  ordinary  criminal  defendant;  but 
Samos-Midas  presents  a  novel  pattern  of  espionage 
activity  that  renders  much  of  the  legal  reasoning  appli- 
cable to  traditional  espionage  obsolete. 

Presumably  the  satelHtes,  as  governmental  property 
devoted  to  a  public  use,  would,  by  application  of  nor- 
mal principles,  be  entitled  to  sovereign  immunity.  How- 
ever, the  use  of  satellites  to  break  the  laws  of  target 
states  would,  at  least  after  warning,  allow  the  latter  to 


take  coercive  action  in  self -protection.  Furthermore,  im- 
munity is  primarily  a  judicial  inhibition.  In  any  event,  it 
is  unlikely  that  the  disposition  of  the  controversy  would 
stress  to  any  degree  the  sovereign  ownership  of  the 

Finally,  there  is  the  Soviet  claim  to  engage  in  extra- 
territorial enforcement.  Even  if  one  grants  that  outer 
space  is  "outside'*  of  national  territory,  it  is  still  quite 
legitimate  to  reason,  by  analogy  to  the  practice  in  con- 
tiguous zones  on  the  high  seas,  that  a  state  may  make 
claims  that  are  reasonably  necessary  for  its  national 
security.  Thus  there  would  be  no  need  to  claim  sov- 
ereignty up  to  the  heavens  in  order  to  justify  Soviet  en- 
forcement of  its  espionage  laws  in  outer  space.  Russia 
could  quite  reasonably  assert  a  particularized  claim 
to  control  espionage,  even  if  the  objectionable  acts  were 
all  performed  in  outer  space.  Putting  this  into  jurisdic- 
tional rhetoric,  we  can  say  that  a  jurisdictional  claim  to 
assert  control  over  a  particular  activity  in  outer  space 
need  not  rest  upon  a  prior  estabhshment  of  national 
sovereignty  over  outer  space.  Neither  the  physical 
locus  of  conduct  nor  sovereignty  are  indispensable 
bases  for  vahd  jurisdictional  claims,  although  both  are 
frequently  used.  In  fact,  it  is  important  to  encourage 
the  formulation  of  particularized  claims,  supported  by 
their  reasonable  hnk  to  national  interest,  in  preference 
to  wholesale  extensions  of  sovereignty  that  will  vali- 
date, among  other  things,  the  particular  claim.  The 
experience  with  territorial  waters  is  instructive.  Latin 
American  claims  to  wide  (200-300  miles)  belts  of  ter- 
ritorial waters  were  prompted  by  a  desire  to  keep  for- 


eign  trawling  fleets  out  of  coastal  fishing  grounds.  It 
would  have  served  this  interest,  and  kept  a  maximum 
area  for  free,  unimpeded  use  of  the  high  seas,  had  these 
nations  instead  put  their  claim  in  the  kind  of  specific 
language  used  to  justify  national  control  beyond  the 
territorial  waters.^^  The  particular  claim,  justified  by- 
reference  to  national  interests,  meets  the  needs  of  world 
order  far  more  than  does  the  crude  exclusivity  of  the  no- 
tion of  sovereignty.  For  wherever  it  is  functionally  ad- 
vantageous to  share  use,  it  is  best  to  work  out  a  solution 
along  specific  fines.  The  dichotomy  between  freedom 
(of  the  high  seas,  of  outer  space)  and  sovereignty  is  an 
inept  way  to  allocate  legal  competence  in  an  area  where 
most  uses  are  inclusive,  but  where  a  few  are  exclusive. ^° 
World  order  advances  by  accommodating  these  two 
sets  of  national  interests;  that  is,  by  encouraging  the 
awareness  that  national  interests  often  profit  more  from 
foregoing  exclusivity  than  from  insisting  on  it.^^  The 
growth  of  supranationafism  in  Europe,  the  Antarctic 
Treaty,  and  the  success  of  the  specialized  agencies  of 
the  United  Nations  bear  witness  to  an  emerging  reafiza- 
tion  that  sovereignty  is  not  the  answer  to  the  allocation 
of  authority  and  resources  in  areas  which  are  of  genu- 
ine interest  to  more  than  one  nation.  But  such  promis- 
ing developments  as  these  depend  upon  the  wilhngness 
of  nations  not  to  use  the  community  form  as  a  base  for 
hostile  operations  against  a  member  of  the  commu- 
nity.^^ Here  again  one  senses  the  potential  harm  that 
may  be  done  by  Samos-Midas.  In  the  struggle  to  mini- 
mize exclusive  claims  in  outer  space  it  is  dangerous  to 
jeopardize  the  perceived  safety  of  other  nations.  For 


to  do  so  causes  the  minimum  basis  for  trust  to  disappear 
and  the  functional  compatibiHty  of  interests  to  vanish 
from  perception. 

This  discussion  raises  a  general  theoretical  issue  rele- 
vant to  the  future  course  of  international  legal  develop- 
ment. The  facts  of  progressive  interdependence,  so  fre- 
quently acknovi^ledged  in  recent  Hterature,  lead  to  a 
need  for  sharper  allocational  concepts  in  the  interna- 
tional legal  system.  When  nations  were  relatively  inde- 
pendent in  the  pursuit  of  their  interests,  it  was  desirable 
to  stress  the  simplicity  of  the  ideas  of  sovereign  ex- 
clusivity and  inclusive  freedom.  Interdependence  re- 
quires more  subtle  categories  of  international  law,  cate- 
gories which  will  give  maximum  support  to  as  many 
genuine  national  interests  as  possible.  The  encourage- 
ment of  ad  hoc  justifications  for  particular  claims  ac- 
cords with  this  need.  It  allows  the  process  of  claim  and 
resistance  to  claim  to  emphasize  relative  functional 
considerations  rather  than  abstract  categories  of  legal 
status.  This  seems  to  be  the  best  way  for  an  interde- 
pendent but  decentrahzed  legal  order  to  proceed  if  it  is 
to  solicit  maximum  support  from  national  actors.  This  is 
very  important,  because  the  slow  growth  of  suprana- 
tional legal  order  depends  heavily  on  the  development 
of  trust  on  the  national  level.  And  trust  emerges  from 
the  perception  of  a  non-arbitrary  attempt  to  serve  the 
community  and  its  members. 

All  this  bears  on  the  attempts  to  solve  the  problems  of 
outer  space  by  drawing  a  rough  analogy  to  the  status  of 
airspace,  the  high  seas,  or  the  polar  regions.^^  Thus,  us- 
ing the  simphfied  traditional  doctrine,  one  extends  air- 


space  upward  forever  and  affirms  a  notion  of  sover- 
eignty (although  this  is  so  patently  impractical  that  it 
dissuades  most),  or  one  finds  a  boundary  for  airspace 
and  proclaims  the  freedom  of  outer  space,  or  one  stresses 
the  prescriptive  character  of  acquired  rights  in  outer 
space.  The  process  of  claim  underneath  the  crude  doc- 
trinal categories  provides  considerable  guidance  from 
past  experience,  especially  with  regard  to  the  histori- 
cal administration  of  the  high  seas.  Professor  Lipson 
had  made  this  point  with  admirable  succinctness: 

In  maritime  law  and  practice  there  is  not  merely 
a  zone  of  territorial  waters,  a  single  contiguous 
zone,  and  the  free  high  seas;  there  is  a  whole  clus- 
ter of  zones,  overlapping  and  intersecting,  estab- 
lished at  different  times  for  different  purposes  by 
different  states  (unilaterally,  bilaterally,  and  mul- 
tilaterally)  with  different  degrees  of  formality,  en- 
forced by  different  methods,  and  accepted  in  dif- 
ferent degrees  by  varying  numbers  of  other  states. 

This  general  view  is  made  quite  concrete: 

No  unitary  rule  could  or  should  be  devised  to 
cover  this  motley  patchwork;  there  is  no  reason 
why  one  rule  of  law  must  apply  to  the  regulation, 
control,  prohibition,  or  mutual  tolerance  of  such 
diverse  activities  as  navigation,  fishing,  conserva- 
tion of  fisheries,  and  cable-laying;  naval  maneuvers 
and  antisubmarine  patrol;  the  use  and  conserva- 
tion of  resources  on  the  sea  bed;  enforcement  of 
customs  regulation;  and  protection  of  neutrality.  It 
is  this  very  diversity  of  legal  order,  stemming  from 
the  diversity  of  policies  and  purposes,  fitting  the 
diversity  of  activities  and  conditions,  that  wilt  pro- 


vide  a  fruitful  analogy  for  what  must  be  a  gradual 
development  of  the  law  of  outer  space.  ( Emphasis 
supplied.)  ^* 

This  sophisticated  view  of  analogy,  stressing  concrete 
legal  problems  rather  than  overarching  doctrinal  ab- 
stractions, is  the  basis  for  rational  law-planning  in 
outer  space.  The  facts  of  interdependence,  highlighted 
by  the  problem  of  distinguishing  between  mihtary 
and  peaceful  uses,  make  it  essential  that  nations  assert 
their  claims  with  a  clear  sense  of  community  welfare  in 
mind.  Allocations  on  the  high  seas  could  allow  specific 
unilateral  assertions  based  on  a  narrow  view  of  national 
interest  without  often  risking,  until  very  recently,  com- 
munity welfare.  Rational  allocation  of  authority  to  act 
in  outer  space,  however,  requires  a  broader  view  of 
national  interest  that  incorporates  the  genuine  concerns 
of  other  nations  if  it  is  to  foster  the  growth  of  a  legal 
regime  based  upon  maximum  use  and  minimum  fric- 
tion. It  is  this  emphasis  that  is  urged  here  for  an  ap- 
praisal of  the  legality  of  the  Samos-Midas  program. 
We  can  see  that  Samos-Midas  seriously  threatens  the 
prospects  for  a  co-operative  development  of  outer 
space.  The  Soviet  Union  can  reduce  the  threat  some- 
what by  directing  its  objection  at  the  use  of  outer 
space  by  the  United  States  for  military  espionage  rather 
than  by  resting  its  objection  upon  some  claim  of  sover- 
eignty over  that  portion  of  outer  space  that  is  "above" 
its  territory.  Similarly,  the  United  States  can  defend  its 
actions  by  asserting  the  reasonableness  of  Samos- 
Midas  in  view  of  its  non-interference  with  the  Soviet 


social  order  and  its  contribution  to  the  United  States 
defense  system;  such  a  defense  could  be  made  dramatic 
by  an  offer  to  put  Samos-Midas  under  supranational 
administration.  Although  there  is  no  easy  solution  to  this 
conflict  of  national  interests,  there  are  more  and  less 
responsible  ways  of  seeking  a  resolution. 

Is  this  argument  changed  by  the  fact  that  Samos- 
Midas  orbits  through  "outer  space"  as  an  unmanned 
instrument?  Such  an  inquiry  is  independent  of,  al- 
though related  to,  the  earlier  discussion  on  jurisdiction. 
It  looks  upon  the  issue  from  the  special  perspective  of 
national  sovereignty  and  its  distinctive  ordering  role  in 
international  affairs.^^  Does  a  surface  state  have  any 
sovereign  control  over  activity  that  takes  place  in  "outer 
space'?  President  Kennedy  recently  told  the  General 
Assembly  of  the  United  Nations  that  "the  new  horizons 
of  outer  space  must  not  be  riven  by  the  old  bitter  con- 
cepts of  imperialism  and  sovereignty."  ^®  This  presum- 
ably means  that  the  development  of  outer  space  should 
not  proceed  by  states  claiming  exclusive  control  over 
specified  uses  or  regions  of  outer  space.  It  looks  toward 
some  co-operative  regime  established  and  operated  by 
legal  institutions  and  techniques.  However,  "sover- 
eignty" also  refers  to  the  capacity  of  states  to  generate 
legal  order.  But  how  can  we  overcome  the  contradic- 
tory national  policies  of  cold- war  rivals?  With  the  ob- 
jective of  legal  order  in  view,  let  us  examine  the  ways 
in  which  disputes  as  to  contested  uses  of  outer  space 
might  be  handled  under  the  circumstances  of  present 
political  conflict.  Here,  the  role  of  national  sovereignty 
— ^not  as  a  way  to  validate  claims  to  exclusive  control 


but  as  an  agent  to  establish  the  legitimacy  of  particular 
claims  or  to  bring  into  being  a  legal  regime — is  in- 
deed complex. 

One  steps  into  a  dense  jurisprudential  jungle  at  this 
point.  The  delimitation  of  national  sovereignty,  as  or- 
dering agency,  is  among  the  most  slippery  subjects  in 
international  law.  It  is  especially  problematic  in  a  case, 
such  as  this,  where  prior  experience  offers  relatively  Ht- 
tle  guidance.  The  legal  order  tends  to  resolve  present 
controversies  by  reference  back  to  past  norms  and  dis- 
positions. When  the  past  does  not  provide  guidance, 
and  the  issue  is  important,  the  legal  order  in  a  cen- 
tralized social  system  tends  to  generate  a  new  solution 
through  the  agency  of  legislative  action.  The  interna- 
tional legal  order  lacks  central  legislative  institutions. 
It  depends,  instead,  upon  decentralized  ordering 
techniques  to  meet  the  challenge  of  a  new  situation.  But 
the  outer  limit  of  innovation  in  a  decentralized  system 
is  reached  at  the  point  where  the  interests  of  the  power- 
ful actors  within  the  system  begin  to  diverge  signifi- 
cantly. For  international  law  this  means,  among  other 
things,  that  the  equivalent  of  legislation — at  least  of  a 
formal  variety — ^must  satisfy  the  dominant  interests  of 
powerful  national  actors.  Thus  it  is  difiicult  to  antici- 
pate a  formal  resolution  of  a  dispute — not  covered  by 
the  inherited  system  ^^ — when  antagonistic  interests  of 
the  United  States  and  the  Soviet  Union  arise  from  cold- 
war  subject  matter.  This  analysis  seems  suggestive  for 
our  attempt  to  understand  the  bearing  of  international 
law  upon  the  United  States'  plan  to  use  outer  space  for 
"espionage"   against   the   Soviet   Union.    Those   who 


would  resolve  such  a  controversy  by  negotiating  an 
agreement  on  the  degree  of  national  sovereignty  over 
outer  space  overlook,  it  v^ould  seem,  the  relevance  of 
the  character  of  the  international  system  to  the  pre- 
scription of  new  norms.  The  incapacity  of  the  interna- 
tional system  to  provide  orderly  ways  to  test  new  claims 
is  a  serious  cause  of  contemporary  instabihty.  A  nation 
is  given  the  choice  of  self-restraint  or  recourse  to  uni- 
lateral action  backed  by  force.  The  danger  of  forcing 
such  a  choice  back  onto  the  national  level  is  illus- 
trated by  Israel's  initiation  of  the  Suez  campaign  in 
1956  and  by  the  revolts  of  oppressed  peoples  in  Africa. 
Samos-Midas  also  illustrates  the  inflexibility  of  the 
system.  There  is  no  institutionaHzed  way  to  determine 
the  validity  of  the  United  States  claim,  and  the  leaders 
of  the  two  nuclear  blocs  must  settle  the  issue  by  give 
and  take.  Once  the  satellites  are  put  in  orbit,  a  cycle  of 
friction  and  retaliation  is  likely  to  begin.  This  raises,  of 
course,  the  whole  problem  of  the  relation  between  in- 
ternational law  and  social  change  in  the  world  today. 
The  instability  of  the  system  results  most  significantly 
from  the  absence  of  supranational  legislative  tech- 
niques, the  existence  of  oppressive  national  governing 
elites,  and  the  willingness  of  cold-war  rivals  to  inter- 
vene on  behalf  of  contending  internal  factions.  And 
rigidity  is  characteristically  present  whenever  a  new 
controversial  claim  has  cold-war  relevance,  as  does 

Adjudication  is  formally  possible.  The  issue  could  be 
put  in  justiciable  form :  Are  observational  satellites  for- 
bidden by  international  law?  But  the  negative  consid- 

erations  applicable  to  legislation  apply  a  fortiori  to 
adjudication.  In  addition,  the  Soviet  Union  refuses  to  al- 
low legal  order  to  emerge  from  supranational  decisions; 
it  takes  a  very  conservative  view  of  transfers  of  sover- 
eign discretion.  Finally,  the  establishment  of  a  legal 
regime  for  outer  space  is  a  polycentric  issue  ill  suited 
for  adjudicative  techniques  and  institutions.^®  The  in- 
definiteness  of  the  grounds  of  any  possible  decision 
tends  to  undermine  its  acceptabihty  to  the  losing 
litigant.  Nations  generally  refuse  to  submit  important 
legal  controversies  to  adjudicative  organs  when  they 
can  not,  in  advance,  envision  the  general  character  of 
the  legal  solution.  In  any  event,  the  status  of  Samos- 
Midas  implies  a  determination  of  an  entire  legal  regime 
for  outer  space.  This  assumes  a  scope  of  inquiry  and 
decision  that  is  not  normally  possible  in  the  judicial 

An  alternative  to  a  formal  decision  in  advance  is  to 
accept  the  eflFectiveness  of  the  claim  to  orbit  the  satel- 
lites as  a  criterion  of  legitimacy.  Thus  the  United  States 
is  not  forbidden  to  put  Samos-Midas  in  orbit,  but  nei- 
ther is  the  Soviet  Union  forbidden  to  shoot  the  satellites 
down.  The  Harvard  Law  Review  put  it  this  way  in  a 
perceptive  note: 

.  .  .  Whether  the  Soviet  Union  will  choose  to  de- 
stroy American  spy  satelHtes  when  it  becomes  ca- 
pable of  doing  so  depends  on  Soviet  national  goals 
as  conceived  by  the  Soviet  leaders.  For  the  purpose 
of  a  legal  analysis,  however,  it  is  sufficient  to  ob- 
serve that  whatever  the  Soviet  Union  does  in  this 
regard  will  not  appear  to  be  violative  of  interna- 
tional law.  .  .  .  (Emphasis  supplied.)  ^* 


Reliance  upon  effective  control  as  a  determinant  of  the 
legitimacy  of  "military"  claims  is  an  undesirable  way  to 
fill  a  legislative  vacuum.  It  tends  to  accentuate  the 
formative  role  of  relative  power  in  international  affairs. 
Small  nations,  lacking  space  technology,  are  then  left 
without  protection.  This  promotes  further  the  bipolari- 
zation  of  outer  space,  as  only  the  United  States  and  the 
Soviet  Union  possess  the  technological  base  for  ex- 
tensive space  activity  in  the  period  ahead.  It  also  makes 
coercive  conflict  an  institutional  technique  for  accom- 
modation; this  may  be  a  last  resort,  but  it  is  hardly  ac- 
ceptable if  alternatives  can  be  found.  The  habit  of  test- 
ing limits  by  awaiting  the  application  of  counterforce 
adds  to  the  instability  of  the  times.  It  is  not  an  implica- 
tion of  conflict  on  the  political  level. 

A  voluntaristic  theory  of  international  obligation,  as 
formulated  by  the  Lotus  majority  decision,  gives  a  sup- 
porting analysis.*"  The  basic  idea  is  that  the  objecting 
state  has  the  burden  of  showing  that  the  defendant 
state  acted  in  violation  of  an  existing  rule  of  interna- 
tional law.  Put  affirmatively,  this  means  that  a  state 
may  do  whatever  it  is  not  expressly  forbidden  to  do  by 
international  law.  Thus  in  areas  where  there  is  no  con- 
sensus as  to  even  the  existence  of  a  legal  order,  much 
less  its  quality,  a  state  may  do  whatever  it  pleases,  sub- 
ject only  to  another  state's  right  to  act  in  self-defense. 
Specifically,  the  United  States  may  launch  its  observa- 
tional satellites  and  the  Russians  may  shoot  them  down 
if  they  purport  to  do  so  in  self-defense."  The  Lotus 
approach  when  coupled  with  the  customary  right  of 
self-defense  seems  rather  similar  to  the  solution  reached 


by  the  dynamics  of  effective  control.  The  U-2  incident 
suggests  that  such  approaches  lead  to  serious  intensifi- 
cations of  cold-war  tensions  and  interfere  with  what- 
ever prospects  for  wider  accommodations  exist  at  the 
time/^  In  addition,  one  may  question  the  legality  and 
wisdom  of  authorizing  defensive  force  to  test  "the  per- 
missibility'' of  the  Samos-Midas  satellites.  The  Charter 
renunciation  of  force  is  qualified  by  the  limited  grant 
of  Article  51  that  preserves  "the  inherent  right  of  indi- 
vidual or  collective  self-defense  if  an  armed  attack  oc- 
curs." Certainly  the  observational  satellite  does  not  con- 
stitute "an  armed  attack."  It  is  true  that  some  Charter 
experts  contend  that  Article  51  preserves  "the  inherent 
right"  which  includes  a  decentralized  determination  of 
what  must  be  done  in  self-defense.*^  But  such  a  broad 
interpretation  of  the  right  of  self-defense  is  less  plau- 
sible than  its  narrower  alternative,  and  dissolves  a  fairly 
objective  standard  for  the  use  of  defensive  force.  The 
need  for  stable  hmits  on  the  use  of  force  in  a  world 
filled  with  nuclear  weapons  suggests  the  high  serious- 
ness of  following  a  course  of  action  that  gives  a  victim 
state  no  real  alternative  to  the  use  of  defensive  force.  It 
is  with  this  in  mind  that  American  policy-makers 
should  consider  carefully  the  advisability  of  present- 
ing the  Soviet  Union  with  a  situation  in  which  its  vital 
interests  can  be  protected  only  by  recourse  to  force.** 
This  essay  seeks  to  deal  with  the  contemplated 
Samos-Midas  program  in  fight  of  the  struggle  to  achieve 
minimum  stability  in  world  affairs.  Much  of  the  discus- 
sion of  this  kind  of  issue  loses  sight  of  the  national  in- 
terest in  world  order  by  its  focus  upon  the  national  in- 

terest  in  getting  the  upper  hand  at  the  moment  in  the 
cold  war.  The  relation  between  these  two  levels  of  in- 
terest is  indeed  obscure.  We  improve  our  understand- 
ing, however,  by  growing  aware  of  the  distinction. 

What  is  the  relevance  of  the  cold  war  to  the  quest  for 
legitimacy  in  controversial  areas  of  world  aflPairs? 
Bipolarity,  nuclear  weapons,  the  cold  war — each  condi- 
tions the  possibihties  for  legal  growth.  The  Samos- 
Midas  program  raises  directly  such  issues  of  relevance, 
since  it  so  obviously  deals  with  the  perceived  vital  in- 
terests of  the  bloc  leaders  in  the  cold  war.  How  much  is 
legitimacy  worth  to  us  in  our  dealings  with  the  Rus- 
sians? Should  we  ignore  legal  restraints  so  as  to  meet 
the  communist  challenge?  We  find  the  attitude  of  Ad- 
miral Ward  at  one  end  of  the  spectrum: 

Isn't  it  about  time  to  free  ourselves  of  our  decep- 
tion that  accommodations  can  buy  peace  from  the 
Communists,  and  that  peace  with  them  can  be  se- 
cured through  law — even  space  law?*® 

Law,  then,  becomes  for  the  Untied  States  a  matter  of 
unilateral  self-restraint,  as  there  is  no  mutuality  of 
commitment.  The  Soviets  manipulate  legal  obhgations 
to  suit  their  political  objectives,  repudiating  such  obli- 
gations when  their  objectives  change.  The  United 
States,  in  contrast,  adheres  to  legal  obligations  once 
undertaken,  and  thus  loses  flexibility  in  the  political 
struggle.  In  this  view,  legal  restraint  does  not  restrict  So- 
viet freedom  of  action,  but  it  does  restrict  ours.  There- 
fore, we  should  stay  clear  of  legal  accommodations 
with  the  Russians  on  cold-war  issues.  Law  acts  as  a 



trap.  Presumably,  then,  the  United  States  should  go 
briskly  forward  with  Samos-Midas  regardless  of  its 
destabihzing  consequences  because  Soviet  ideology 
and  practice  make  legal  accommodation  self-destruc- 
tive. Law  and  survival  act  to  contradict  one  another. 
A  more  moderate  attitude  towards  the  role  of  law  in 
the  cold  war  gives  critical  emphasis  to  strategy  and 
experience.  Legal  accommodation  may  be  desirable, 
but  only  when  we  have  enough  experience  to  assess  the 
bearing  of  a  legal  obligation  upon  our  special  needs  for 
survival  under  present  conditions.  Loftus  Becker,  writ- 
ing as  Legal  Adviser,  said: 

.  .  .  Any  sound  body  of  law  is  based  on  a  system 
of  experience  and  known  facts.  There  are  a  great 
deal  of  facts  that  we  just  don't  know  at  the  present 
time  with  respect  to  outer  space  and  the  conditions 
there  existing.*^ 

To  this  uncertainty  arising  from  inexperience  is  added 
a  deep  distrust  of  the  Soviet  Union.  Professor  Lipson 
writes,  for  instance: 

In  this  field  [of  outer  space]  as  in  other  fields  of 
international  law,  Soviet  doctrine  combines  a  pious 
attachment  to  the  names  of  traditional  concepts 
with  a  flexible,  "instrumental"  manipulation  of  the 
content  of  the  concepts  to  serve  the  current  needs 
of  Soviet  policy.*^ 

Distrust  leads  to  an  insistence  on  very  clear  lines  of 
commitment;  hence,  we  must  be  sure  what  we  are  giv- 
ing up  before  we  agree  with  the  Russians.  In  outer 


space  we  do  not  have  enough  experience,  at  present, 
to  be  sure  that  a  commitment  we  make  today  might  not 
place  us  in  handcuffs  tomorrow.  Here  again  primacy 
is  given  to  pohtical  factors,  and  survival  is  linked  to 
freedom  of  choice  rather  than  to  stable  limits  upon 
choice."^  Law  must  be  content  with  a  marginal  role, 
stabilizing  areas  of  convergence  after  all  the  facts  are 
in,  rather  than  preparing  an  ordering  scheme  for  the 
emerging  facts.  In  the  interim,  the  Lotus  interpretation 
of  sovereignty  is  used  to  justify  all  non-prohibited  con- 
duct. Existing  law  does  not  pertain  to  outer  space.  A 
state  can  thus  do  whatever  it  wants.  Therefore,  if 
Samos-Midas  is  helpful  to  us,  we  should  proceed  with 
it,  since  there  is  no  appHcable  legal  restraint.  There  is 
much  to  be  said  for  an  approach  that  is  so  simple  and 
permissive;  however,  it  fails  to  take  account  of  the 
destabilizing  effect  of  novel  unilateral  military  claims 
in  a  decentrahzed  social  order  in  which  the  chief  actors 
possess  thermonuclear  bombs.  It  also  overlooks  horizon- 
tal and  provisional  ordering  possibilities  that  arise  from 
unilateral  self-restraint.  These  possibilities  will  not  al- 
ways gain  more  order  (for  example,  the  Soviet  resump- 
tion of  nuclear  testing);  but  they  may  postpone  friction 
and  induce  reciprocal  self-restraint  by  the  Soviet 
Union.  We  would  have  only  the  choice  between  sur- 
render and  preventive  war  if  we  did  not  posit  a  mini- 
mum Soviet  commitment  to  world  order  and  the  avoid- 
ance of  nuclear  devastation.*®  We  often  act,  however, 
as  if  there  were  alternatives  in  the  middle.  Thus  it  is 
rational  for  us  to  take  some  risks  to  order  international 
relations,  even  though  it  may  conceivably  give  strategic 


benefits  to  the  Soviet  Union.  Such  considerations 
should  influence  decisions  made  with  regard  to  the 
Samos-Midas  program. 

At  the  other  end  of  the  spectrum  one  finds  a  variety 
of  scholars  and  concerned  pubhc  officials  w^ho  feel  that 
it  is  essential  that  w^e  estabfish  a  vertical  legal  regime 
prior  to  the  assertion  of  various  national  claims.  For 
instance,  Senator  Keating  put  it  this  v^ay: 

There  will  be  no  time  for  legal  craftsmanship  and 
judicial  speculation  after  rival  claims  are  made  to 
the  moon  or  to  space  itself.  .  .  .  The  rule  of  law  in 
the  age  of  space  is  not  a  matter  of  philosophy,  but 
a  matter  of  survival. ^^ 

And  John  Cobb  Cooper  has  for  years  brought  the 
weight  of  his  learning  and  authority  to  bear  in  this  di- 
rection. In  1960  he  said  at  Leyden  that  "international 
peace  and  the  future  welfare  of  mankind  demand  that 
the  Rule  of  Law  shall  be  applicable  with  certainty  to 
outer  space."  ^^  This  requires  a  clear  agreement  as  to  the 
rights  and  duties  of  nations  in  outer  space: 

If  the  Rule  of  Law  is  to  be  applied  in  outer  space, 
then  I  submit,  as  I  have  on  other  occasions,  that  the 
area  of  outer  space  must  be  determined,  that  its 
legal  status  be  agreed  upon,  that  the  rights  of 
States  in  the  area  be  universally  acknowledged 
and  that  the  legal  status  of  flight  instrumentafities 
to  be  used  in  outer  space  be  also  fixed.*^^ 

This  position  stresses  the  ordering  role  of  law,  and  does 
so  without  regard  to  the  character  of  the  international 


system  as  it  now  exists.  Without  techniques  for  social 
change,  nations  are  unwiUing  to  agree  on  a  legal  re- 
gime until  they  see  clearly  what  is  involved.  Space  and 
flight  developments  have  proceeded  with  such  rapidity 
that  those  proposing  a  basis  for  legal  agreement  have 
constantly  had  to  revise  their  recommendations.  Mr. 
Cooper's  writings  through  the  years  provide  a  striking 
illustration  of  the  need  to  change  law  to  meet  new 
technological  developments.^^  Agreement  at  any  stage 
is  inadequate  at  the  next  technological  stage;  renegotia- 
tion is  always  diflBcult  since  the  new  development  has 
an  unequal  bearing  upon  the  national  interests  of  the 
participating  states.  This  intractabihty  would  apply 
most  vividly  when  extra-legal  developments  have  an 
unequal  effect  on  the  military  positions  of  the  cold-war 
rivals.  Vertical  norms — that  is,  norms  with  formal  status 
as  supranational  obhgations  ^* — could  not  withstand 
such  a  strain.  It  is  probably  premature,  as  Becker  and 
Lipson  suggest,  to  create  vertical  norms  to  govern  outer 
space  at  this  time.  But  it  is  never  premature  to  seek 
horizontal  legal  order.  The  alternatives  are  too  gen- 
erally seen  as  comprehensive  international  agreement 
or  chaos,  vertical  law  or  lawlessness,  legal  restraint 
or  sovereign  imrestraint. 

My  argument  is  that  the  effects  of  Samos-Midas  upon 
the  stability  of  the  use  of  outer  space  as  well  as  upon 
the  use  of  defensive  force  challenge  the  rationality 
of  the  claims  of  the  United  States  to  use  outer  space  for 
the  military  observation  of  the  Soviet  Union.  Horizontal 
legal  order  particularizes  the  focus  of  inquiry  upon  the 


reasonableness  of  a  national  claim  given  all  relevant 
considerations,  including  infringements  upon  the  inter- 
ests of  other  states.  It  is  this  process  of  inquiry,  outlined 
in  general  form  in  this  paper,  that  should  govern  the 
decision  whether  or  not  to  put  Samos-Midas  satelUtes  in 
orbit  above  Soviet  territory.  Final  appraisal  rests 
heavily  upon  access  to  data  that  are  unavailable  to  the 
public:  the  importance  of  the  information  obtainable, 
the  degree  of  Soviet  objection,  the  probable  success  of 
Soviet  attempts  to  shoot  down  or  otherwise  interfere 
with  the  satellites,  the  bearing  the  project  would  have 
upon  possible  co-operative  space  projects  and  the 
eventual  demilitarization  of  space,  and  the  develop- 
ment of  alternative  means  to  receive  equivalent  intel- 
ligence. Newspaper  reports  and  legislative  hearings  re- 
veal no  consideration  of  the  wider  imphcations  of  the 
Samos-Midas  program  for  world  order.  The  strategic 
advantage  of  closing  the  intelligence  gap  seems  to  be 
taken  as  a  self-suflBcient  justification  for  asserting  the 
imilateral  claim.  Such  a  foreshortening  of  inquiry, 
which  seems  to  exclude  the  bearing  of  Samos-Midas 
upon  international  order,  is  unforgivable  in  a  world 
where  potential  enemies  in  a  thermonuclear  war  boast 
of  their  "overkill"  capacity.  It  may  be  part  of  the  com- 
plexity of  the  times  to  acknowledge  the  importance  of 
Henry  Kissinger's  remark  that  "the  very  intensity  of  our 
desire  for  peace  may  increase  our  peril."  ^^  But  such  a 
perception  should  not  lead  us  to  deny  the  manifest 
rationality  at  the  core  of  this  intense  desire.  We  must 
continue  to  apply  our  energies  to  the  diminishing  of 


our  peril.  At  least  as  far  as  the  Samos-Midas  program  is 
concerned,  there  is  httle  evidence  of  such  an  applica- 
tion of  energy. 

Let  us,  then,  be  mindful  of  the  bearing  upon  na- 
tional interests  of  President  Kennedy's  recent  plea  to 
the  United  Nations:  "As  we  extend  the  rule  on  earth, 
so  must  we  also  extend  it  to  man  s  new  domain — outer 
space."  ^^  The  character  of  the  times  makes  this  a  na- 
tional responsibihty  as  well  as  a  universal  aspiration. 

1.  N.Y.  Times,  Aug.  29,  1961.  For  a  military  appraisal  of 
aerial  surveillance,  see  Ford,  Tactical  Reconnaissance,  12 
Am  UNiVERsmr  Q.  Rev.  120  (Winter  and  Spring  1960-61). 

2.  Coates,  Reconnaissance  Satellites,  3  Spaceflight  100 

3.  N.Y.  Times,  Oct.  22,  1961. 

4.  See  criticisms  by  scientists  from  many  countries,  in- 
cluding the  United  States,  N.Y.  Times,  Oct.  23, 1961. 

5.  "Two  ballistic  missile  warning  systems  are  currently 
programed.  The  first,  already  partially  operational,  is  the 
BalHstic  Missile  Early  Warning  System  (bmews).  .  .  . 
The  second  warning  system,  which  will  complement  bmews, 
is  the  missile  defense  alarm  satellite  (Midas).'*  Wheless, 
The  Deterrent  Offensive  Force,  12  Am  Untversity  Q.  Rev. 
59,  68  (Winter  and  Spring  1960-61). 

6.  See  Zhukov,  Space  Espionage  Plans  and  International 
Law,  reprinted  from  Intl  Aff.  53-57  (Moscow,  Oct. 
1960),  in  symposium  on  Legal  Problems  of  Space  Explo- 
ration prepared  for  Senate  Committee  on  Astronautical 
and  Space  Sciences,  Doc.  No.  26,  87th  Cong.,  1st  Sess.  1095, 
1098  (1961)  [hereinafter  cited  as  Legal  Problems].  (See 
same  volume  for  representative  formulations  of  Soviet 
bloc's  views  on  the  use  of  space.) 

7.  E.g.,  Hearings  on  Missiles,  Space  and  Other  Major 
Defense  Matters  before  the  Preparedness  Investigating 
Subcommittee  of  the  Committee  on  the  Armed  Forces  of 


the  U.  S.  Senate,  86th  Cong.,  2d  Sess.,  70  (1960);  Baldwin, 
Intelligence  and  Survival,  N.Y.  Times,  May  9,  1960.  How- 
ever, if  the  U-2  flights  enabled  the  United  States  to  plot 
•  geodetic  co-ordinates  within  Soviet  territory,  the  gap  may 
actually  be  in  our  favor. 

8.  Crane,  Planning  for  Space  Legal  Policy  (paper  pre- 
sented to  American  Rocket  Society,  Oct.  1961),  develops  a 
similar  position  in  explicating  what  he  calls  the  "motivation 
for  space  policy";  for  instance,  he  says  that  "the  basic  thesis 
of  this  paper  is  that  law  is  gaining  increasing  value  as  an 
instrument  to  deny  control  of  outer  space  to  others,  and 
that  the  potential  advantage  of  a  law-oriented  space  policy 
should  be  integrated  into  military  contingency  planning." 
Contrast  the  approach  taken  in  Aerospace  Force  in  the 
Sixties,  symposium  in  12  Air  University  Q.  Rev.  1  (Winter 
and  Spring  1960-61). 

9.  E.g.,  consider  the  definition  given  under  Espionage  in 
5  Encyc.  Soc.  Sci.  594  ( 1931 ) :  "Espionage  is  the  practice 
of  obtaining  information  about  an  actual  or  potential  en- 
emy clandestinely  for  possible  use  against  the  enemy." 

10.  Quigg,  Open  Skies  and  Open  Space,  Legal  Prob- 
lems 463;  Young,  The  Aerial  Inspection  Plan  and  Air  Space 
Sovereignty,  Legal  Problems  46. 

11.  My  intention  is  to  highlight  the  distinction  between 
a  unilateral,  self-serving  use  (the  actual  probability)  and  a 
community-oriented,  altruistic  use  (the  potential  possi- 

12.  President  Kennedy  expressed  this  concern  in  his 
address  to  the  16th  Session  of  the  General  Assembly:  "The 
cold  reaches  of  the  universe  must  not  become  the  new 
arena  of  an  even  colder  war,"  N.Y.  Times,  Sept.  26,  1961. 

13.  Equivalent  use  does  not  mean  identical  use;  thus  a 
military  use  by  A  of  outer  space  that  serves  its  strategic 
needs  legitimates  a  proportionate  use  by  B,  given  its  pecul- 
iar strategic  needs.  Cf.  the  rather  unconvincing  suggestion 
of  equivalence  between  Sputnik  and  U-2  overflights  by 
Lipson,  The  Gagarin  and  Powers  Flights,  17  Bulletin  of 
THE  Atomic  Scientists  274  (1961). 

14.  This  formulation  implicitly  assumes  that  Samos- 
Midas  satellites  operate  in  "outer  space"  and  that  outer 


space  is  outside  of  national  territory.  This  issue  will  receive 
later  consideration. 

15.  See  Cooper,  Letter  to  the  Editor,  3  Spaceflight,  No. 
2  at  99  (1961). 

16.  Id.  at  100. 

17.  See  Wright,  Legal  Aspects  of  the  U-2  Incident,  54 
Am.  J.  Intl  L.  836  (1960). 

18.  An  additional  question  can  be  asked:  Is  espionage 
illegal  per  se  under  international  law  or  is  it  illegal  only  if 
there  is  some  added  element  of  illegality,  such  as  an  un- 
authorized penetration  of  the  target  state's  territory?  One 
can  use  this  inquiry,  as  does  Julius  Stone,  to  suggest  the 
legality  of  the  Samos-Midas  program  under  existing  inter- 
national law.  This  reasoning  allows  one  to  disregard  the 
espionage  feature  in  an  appraisal  of  the  legality  of  the 
contested  activity.  However,  its  eflFect  is  to  destabilize 
interstate  relations  by  resting  a  state's  defensive  authority 
upon  technological  change  (i.e.  ability  to  observe  from 
outer  space)  rather  than  upon  an  analysis  of  the  balance 
between  the  community  interests  favoring  the  use  and  the 
target  state's  interests  in  denying  the  use.  Artificial  legal 
categories  cannot  serve  to  determine  the  legal  status  of  a 
contested  quasi-military  claim  in  an  interdependent  realm 
of  conduct  (such  as  outer  space),  especially  if  the  claim  is 
laden  with  cold- war  implications. 

19.  Katzenbach,  Law  and  Lawyers  in  Space,  14  Bulle- 
tin OF  THE  Atomic  Scientists  221,  222:  "Whether  it  [satel- 
lite] is  higher  or  lower  is  irrelevant  to  the  objections  an 
observer  state  would  posit  or  the  claims  the  observer  would 

20.  Falk,  lurisdiction.  Immunities,  and  Act  of  State — 
Suggestions  for  a  Modified  Approach,  in  Essays  on  Inter- 
national Jurisdiction  (1961);  Trautman,  The  Role  of 
Conflicts  Thinking  in  Defining  the  International  Reach  of 
American  Regulatory  Legislation,  20  Ohio  St.  L.  J.  586 

21.  See  especially  McDougal,  International  Law,  Power 
and  Policy — A  Contemporary  Conception,  82  Hague  Re- 
CUEIL  137  (1953);  McDougal,  The  Policy-Science  Ap- 
proach to  International  Legal  Studies,  in  International 


Law  and  the  United  Nations  (Eighth  Summer  Institute, 
University  of  Michigan  Law  School,  June  1955). 

22.  For  instance,  the  controversial  extra-territorial  anti- 
trust decisions:  United  States  v.  Timken  Roller  Bearing 
Co.,  341  U.S.  593  (1951);  United  States  v.  Aluminum  Co. 
of  America,  148  F.  2d  416,  443  (2d  Cir.  1946);  see  gener- 
ally U.S.  Attorney  General's  National  Committee  to 
Study  the  Antitrust  Law  Report  66-91  (1955). 

23.  Geneva  Convention  on  the  High  Seas,  U.N.  Doc. 
A/CONF.  13/L.  53  and  corr.  1  (1958)  Article  5  (1): 
"Each  State  shall  fix  the  conditions  for  the  grant  of  its  na- 
tionality to  ships.  .  .  .  There  must  exist  a  genuine  link  be- 
tween the  State  and  the  ship;  in  particular,  the  State  must 
effectively  exercise  its  jurisdiction  and  control  in  adminis- 
trative, technical  and  social  matters  over  ships  flying  its 

24.  But  this  does  relieve  the  claimant  state  of  the  duty 
to  use  a  rational  process  of  self-delimitation  when  it  pro- 
poses to  extend  its  competence  by  unilateral  action;  reci- 
procity and  estoppel  operate  to  limit  the  unilaterality  of 
the  process.  See  generally  Falk,  International  Jurisdiction 
— Horizontal  and  Vertical  Conceptions  of  Legal  Order,  32 
Temp.  L.  Q.  295  (1959). 

25.  The  probable  inutility  of  these  institutional  alterna- 
tives is  taken  up  later  in  this  essay.  Here  the  point  is  that  a 
centralized  legal  order  (e.g.,  domestic  society  in  a  modern 
state)  solves  controversies  at  the  frontier  by  generating  a 
new  norm  (legislation)  or  by  extending  an  old  norm  (ad- 
judication ) .  Of  course,  this  distinction  is  a  caricature  of  the 
continuum  that  links  judicial  and  legislative  functions  in  an 
operating  legal  system. 

26.  Falk,  Revolutionary  Nations  and  the  Quality  of  In- 
ternational Legal  Order,  in  The  World  Revolution  of  Our 
Times,  to  be  pubhshed  in  1962. 

27.  Of  course,  nuclear  testing  and  missile  development 
are  military  uses  of  outer  space.  However,  they  are  neither 
continuing  nor  inconsistent  with  the  non-military  use  of 
outer  space  during  conditions  of  peace. 

28.  For  the  qualified  assertion  that  "espionage  of  itself 
does  not  appear  to  constitute  a  violation  of  international 


law"  see  Note,  Legal  Aspects  of  Reconnaissance  in  Airspace 
and  Outer  Space,  61  Colum.  L.  Rev.  1074  (1961)  (see 
especially  note  1  at  1074 ) .  There  seems  to  be  authoritative 
doctrine  available  to  support  such  a  conclusion  and  con- 
siderable persuasive  policy  available  to  oppose  it.  An  ade- 
quate analysis  of  the  issue  of  "legality'*  would  have  to 
distinguish  between  information-gathering  and  various 
kinds  of  subversion.  Espionage  is  increasingly  part  of  the 
pattern  of  coercion  roughly  identified  as  "indirect  aggres- 
sion." The  attempt  to  make  the  issue  of  legality  rest  upon 
the  fact  of  war  or  peace  seems  to  oversimplify  the  issue. 
For  an  excellent  discussion  of  wartime  espionage  ( and  the 
like)  see  Baxter,  So-Called  "Unprivileged  Belligerency'' — 
Spies,  Guerrillas,  and  Saboteurs,  28  Brit.  Yb.  Intl  L.  323 

29.  See  Kaplan  &  Katzenbach,  The  Political  Founda- 
tions OF  International  Law  147-154  (1961);  see  also 
McDougal  &  Burke,  Crisis  in  the  Law  of  the  Sea — Com- 
munity Perspectives  versus  National  Egoism,  in  Studies  in 
World  Public  Order  844-911  (1960). 

30.  The  distinction  between  exclusive  and  inclusive  is 
borrowed  from  McDougal  and  Burke. 

31.  Fisher,  Deputy  for  Restraint,  17  Bulletin  of  the 
Atomic  Scientists  272  (1961). 

32.  See  Cheng,  International  Law  and  High  Altitude 
Flights — Balloons,  Rockets  and  Man-Made  Satellites,  in 
Legal  Problems  141,  152-154;  Trail  Smelter  Arbitration 
(United  States  v.  Canada),  3  U.N.  Rep.  Intl  Arb.  Awards 
1905  (1938,  1941). 

33.  Note,  National  Sovereignty  of  Outer  Space,  74  Harv. 
L.  Rev.  1154,  1159-1167  (1961);  Lipson  &  Katzenbach,  Re- 
port TO  THE  National  Aeronautics  and  Space  Adminis- 
tration ON  THE  Law  of  Outer  Space  77-83  (1960); 
Jessup  &  Taubenfeld,  Controls  for  Outer  Space  160-190 

34.  Both  excerpts  are  from  Lipson,  Outer  Space  and 
International  Law  at  10  (Rand  Paper  P-1434,  1958). 

35.  For  a  brilliant  discussion  of  this,  see  Herz,  Intct- 
national  Politics  in  the  Atomic  Age  (1959). 

36.  N.Y.  Times,  Sept.  26,  1961. 


37.  Reference  here  is  to  the  problem  of  adjusting  the 
international  legal  system — a  development  of  Western  Eu- 
ropean culture — to  a  plurality  of  contemporary  normative 
traditions.  Kunz,  Pluralism  of  Legal  and  Value  Systems  and 
International  Law,  49  Am.  J.  Int'l  L.  370  (1955);  North- 
rop, The  Taming  of  Nations  (1952);  Jenks,  The  Com- 
mon Law  of  Mankind  63-172  ( 1958 ) .  For  some  strictures 
upon  attempts  to  solve  the  problems,  see  Falk  &  Mendlo- 
vitz,  Some  Criticisms  of  C.  Wilfred  Jenks'  Approach  to  In- 
ternational Law,  14  Rutgers  L.  Rev.  1,  4-16  (1959),  and 
McDougal  &  Lasswell,  The  Identification  and  Appraisal  of 
Diverse  Systems  of  Public  Order,  in  Studies  in  World 
Public  Order  3-41  (1960). 

38.  Fuller,  Adjudication  and  the  Rule  of  Law,  and  Mor- 
ris, Peace  through  Law — The  Role  and  Limits  of  Adjudica- 
tion, Proceedings  of  the  American  Society  of  Inter- 
national Lav7  1,  15  (1960). 

39.  Note,  National  Sovereignty  of  Outer  Space,  74  Harv. 
L.  Rev.  1154,  1174  (1961). 

40.  Case  of  the  S.S.  "Lotus,"  P.C.I.J.,  ser.  A,  No.  10 

41.  That  is,  self-determined  self-defense  is  a  primary  at- 
tribute of  a  decentralized  legal  order.  Put  differently,  inter- 
national law  allows  a  state  to  characterize,  in  the  first  in- 
stance, its  coercive  conduct  as  "self-defense."  This  is  partly 
a  consequence  of  the  absence  of  a  definition  of  aggression. 

42.  Formalized  expressions  of  public  opinion — for  in- 
stance, resolutions  of  censure  in  the  United  Nations — 
deserve  the  status  of  a  weak  sanction  in  the  international 
legal  system.  Over-analogy  to  the  e£Fectiveness  of  censure 
and  ridicule  in  primitive  societies  is  deceptive,  as  the  Fall 
1961  Soviet  nuclear  test  explosions  illustrate.  We  must  not 
forget  how  much  such  sanctions  depend  upon  a  fairly  high 
level  of  social  integration  among  members  of  the  com- 
munity. A  lack  of  just  such  integration  is  a  major  deficiency 
of  the  international  order.  Thus  we  must  be  careful  about 
the  analogies  between  decentralized  primitive  societies 
and  the  decentralized  international  legal  order. 

43.  E.g.,  Stone,  Aggression  and  World  Order  (1958); 
Stone,  Quest  for  Survival  (1961). 


44.  However,  it  is  likely  that  a  particularized  use  of  force 
would  be  treated  as  an  exercise  of  police  power.  This 
would  lead  the  controversy  to  avoid  the  more  destabilizing 
rhetoric  of  "aggression"  and  "self-defense." 

45.  Hearings  on  International  Control  of  Outer  Space 
Before  the  House  Committee  on  Science  and  Astronautics, 
86th  Cong.,  1st  Sess.,  107  (1959)  (testimony  of  Admiral 

46.  Becker,  id.  at  75. 

47.  See  Lipson,  Outer  Space  and  International  Law 
at  12  (Rand  Paper  P-1434,  1958). 

48.  See  criticism  of  Julius  Stone  for  this  tendency,  in 
Falk,  The  Reality  of  International  Law,  14  World  Politics 
353  (1962). 

49.  It  should  be  stressed  that  this  minimum  Soviet  com- 
mitment may  turn  out  to  be  minimal. 

50.  See,  op.  cit.  supra,  note  45  at  2-3  (testimony  of  Sena- 
tor Keating). 

51.  Cooper,  Questions  of  Space  Law,  3  Spaceflight  95 

52.  Ibid. 

53.  Cooper,  Flight-Space,  and  the  Satellites,  7  Int'l  & 
CoMP.  L.  Q.  82  (1958);  Cooper,  High  Altitude  Flight  and 
National  Sovereignty,  4  Intl  L.  Q.  411  (1951);  Cooper, 
Legal  Problems  of  Upper  Space,  1956  Proceedings  of  the 
American  Society  of  International  Law  85;  Cooper, 
Sovereignty  in  Space,  Flying  (January  1959). 

54.  This  is  one  way  of  expressing  caution  about  the 
relevance  of  the  International  Court  of  Justice  to  the  solu- 
tion of  a  Midas-Samos  controversy. 

55.  Kissinger,  Nuclear  Testing  and  the  Problems  of 
Peace,  37  Foreign  Affairs  1  (1958). 

56.  N.Y.  Times,  Sept.  26,  1961. 


Espionage  and  Arms  Control ' 
Roland  J.  Stanger  * 

iHE  UNITED  STATES  and  Russia  seem  to  agree  on 
one  crucial  point.  Neither  we  nor  they  can  look  to  a 
military  solution  of  the  East- West  conflict.  All-out  war, 
regardless  of  which  side  struck  first,  could  result  only  in 
an  intolerable  level  of  mutual  slaughter  and  destruc- 
tion. Some  millions  of  Americans  and  Russians 
would  perhaps  survive,  in  a  biological  sense.  The  words 
"The  United  States  of  America"  and  "The  Soviet 
Union"  would,  however,  have  lost  any  meaningful  con- 
tent. What  kind  of  society  the  survivors  could  fashion 
cannot  be  predicted  and  is,  to  many,  unimportant. 
Three  developments  have  brought  this  about:  the 
atomic  bomb,  the  hydrogen  bomb,  and  the  icbm.  We 
were  first  with  the  atomic  bomb  and  the  hydrogen 
bomb,  the  Russians  with  the  icbm.  The  scientific 
world  is  so  much  one  world,  however,  that  being  first 
in  anything  can  seemingly  give  only  a  passing  advan- 

*  Professor  of  Law,  Ohio  State  University. 

tage,  and  the  three  significant  developments  Hsted  have 
all  been  to  our  long-run  disadvantage.  They  have  to- 
gether cost  us  the  advantages  of  our  greater  productive 
capacity  and  our  geographical  isolation.  Our  mihtary 
power  is  enormously  greater  than  ever  before,  and  yet 
for  the  first  time  we  are  vulnerable  to  direct,  devastat- 
ing attack.  This  is  the  fault  of  no  individual  and  no 
party.  It  is  the  result  of  the  fact  that  E  =  MC^  and  man 
discovered  that  before  he  succeeded  in  creating  a  so- 
ciety which  could  live  safely  with  that  knowledge. 

These  developments  have  coincided  with  a  marked 
deterioration  in  our  relations  with  the  Russians.  Our  re- 
sponse culminated,  after  a  series  of  Russian  aggressions, 
in  the  doctrine  of  massive  retaliation.  The  moral  im- 
pHcations  of  that  doctrine  troubled  many  of  us.  It  was  a 
threat  to  raise  the  horrors  of  war  to  a  new  dimension. 
Perhaps  it  is  pointless  to  debate  the  morahty  of  differ- 
ent forms  of  warfare.  It  may  be  that  the  distinctions 
between  humane  and  inhumane  weapons  and  between 
combatants  and  noncombatants  have  no  vahdity. 
They  are,  however,  very  much  a  part  of  traditional 
Western  morahty.  Conventional  war,  moreover,  in- 
volved the  gradual  application  of  force.  It  was  a  war  of 
attrition,  in  fives  as  well  as  property.  Each  side  was  free 
at  any  stage  to  decide  it  had  had  enough.  Nuclear  war- 
fare, by  substituting  mass  slaughter  for  attrition,  de- 
prives the  belligerents  of  that  choice. 

For  obvious  reasons,  we  never  defined  just  what  en- 
croachment on  what  American  interest  would  lead  us  to 
apply  the  doctrine.  We  did  not  in  fact  apply  it  on 
several  occasions  when  significant  American  interests 


were  infringed.  The  doctrine  may  have  been  a  colossal 
bluff.  If  anything  made  it  credible,  it  was  that  we  had 
dropped  the  bomb  on  Hiroshima. 

Massive  retaliation,  if  it  was  ever  viable,  is  now  obso- 
lete. It  became  so  when  the  Russians  demonstrated 
they  had  the  means  to  deliver  thermonuclear  warheads 
on  our  territory.  Massive  retahation  was  a  threat,  de- 
signed to  deter;  but  a  deterrent  is  no  better  than  it  is 
credible.  Massive  retaliation,  when  it  became  a  syno- 
nym for  mutual  suicide,  ceased  to  be  credible  except  as 
a  response  to  a  nuclear  onslaught  on  the  United 
States,  or,  perhaps,  Western  Europe.  At  that  stage  it 
would  be  largely  pointless,  except  as  an  act  of  venge- 
ance. Massive  retahation  is,  then,  no  longer  a  doc- 
trine— Hke  the  Monroe  Doctrine — which  can  be  ap- 
plied to  protect  American  interests  in  one  part  of  the 
world  or  another.  It  simply  states  the  obvious  fact  that 
if  we  are  subjected  to  an  all-out  attack,  we  will  respond 
in  kind,  even  if  to  do  so  would  be  irrational. 

It  can  be  said,  however,  that  since  both  we  and  the 
Russians  know  we  will  both  suffer  unacceptable  dam- 
age if  either  attacks,  there  is  no  risk  that  either  side 
will  dehberately  start  an  all-out  war.  Below  the  nuclear 
threshold  we  should  be  able  safely  to  engage  in  para- 
military operations,  wars  by  proxy,  and  even  hmited 
wars.  Professor  Stone  has  pointed  out  that  this  is  no 
mathematical  certainty  but  a  dangerous  half-truth.  It  is 
nonetheless  the  theory  on  which  we  are  now  operating. 
Korea,  Hungary,  Indo-China,  Quemoy  and  Matsu,  the 
Congo,  Cuba  and  Laos  illustrate  that  it  can  work — for 
a  time.  History  hardly  suggests,  however,  that  national 


leaders  always  behave  rationally;  that  their  decisions 
in  times  of  international  tension  characteristically  re- 
flect an  informed  and  dispassionate  appraisal  of  the 
risks  of  war  and  its  consequences.  This  is  more  than 
ever  disquieting,  since  the  consequences  of  a  single  mis- 
calculation can  be  so  catastrophic.  Nor  is  miscalculation 
all  we  have  to  fear.  There  are  other  appalHng  risks  in  a 
world  of  icbm's  and  thermonuclear  warheads.  They 
exist  because,  given  the  destructive  power  of  thermonu- 
clear weapons,  there  is  an  enormous  advantage  to  the 
first  strike  and,  because  of  the  speed  of  icbm's,  the  re- 
action time  available  to  the  defender  is  measured  in 
minutes.  The  fact  that  a  missile,  once  fired,  cannot  be 
recalled  is  a  third  element  which  augments  the  dangers 
of  our  situation. 

The  risks  are  many.  There  is  the  risk  of  an  accident 
which  could  trigger  a  war.  The  accident  could  take 
any  of  several  forms.  One  is  of  simple  mechanical  or 
human  error.  The  incident  in  which  a  Sidewinder 
downed  a  B-52 — though  happily  it  did  not  involve  nu- 
clear weapons — ^is  not  reassuring.^  We  can  only  hope 
that  the  Russian  control  systems  are  at  least  as  foolproof 
as  ours.  Another  is  the  false  alarm,  such  as  the  flap, 
greatly  magnified  in  the  popular  press,  which  occurred 
when  our  radar  picked  up  the  moon,  rising  over  Nor- 
way.^ Still  another  is  the  possibility  of  a  breach  of  firing 
discipline  by  a  psychotic  commander.  One  cannot  have 
both  a  capacity  for  immediate  retaliation  and  a  com- 
pletely centralized,  safe  control  system. 

Another  major  risk  is  that  of  escalation.  It  seems 
likely  that  any  war  between  the  major  powers  will,  be- 


cause  of  the  strong  motivation  to  pre-empt — ^that  is,  to 
beat  the  other  side  to  the  draw — end  in  a  thermonu- 
clear exchange.  If  tactical  nuclear  weapons  are  used, 
escalation  to  strategic  nuclear  weapons  seems  even 
more  likely.  Present  plans  for  the  defense  of  Western 
Europe  are  said,  nevertheless,  to  call  for  the  use  of  tacti- 
cal nuclear  weapons  from  the  outset. 

Again,  there  is  the  risk  of  so-called  catalytic  war.  An 
ambitious  or  desperate  third  country — China  or  Cuba, 
for  example — could  try  to  provoke  a  nuclear  war  be- 
tween the  major  powers.  And  there  are  other  risks,  all 
of  which  increase  each  time  another  country  joins  the 
nuclear  club.  Also,  there  is  always  the  possibihty  of 
some  new  development.  Perhaps  the  most  radical 
would  be  a  real  defense  to  the  icbm — an  effective  anti- 
missile missile,*  for  example.  None  is,  apparently,  now 
in  sight.  The  side  which  finishes  second  in  this  par- 
ticular race  will  have  achieved  unilateral  nuclear  dis- 
armament without  the  help  of  pickets. 

How  one  should  rank  these  risks,  and  what,  cumula- 
tively, the  odds  are  for  a  thermonuclear  exchange  in  a 
year,  or  ten  years,  or  twenty-five,  is  much  debated.  C.  P. 
Snow  gives  us  up  to  ten  years. ^  Other  mortality  tables 
give  the  human  race  a  longer  life  expectancy,  but  still 
do  not  rate  it  an  attractive  insurable  risk.  It  is  not  sur- 
prising, then,  that  the  morahsts  and  the  strategists 
have  joined  forces  and  are  working  together  on  the 
problem  of  arms  control.  Those  strategists,  professional 
and  amateur,  who  two  or  three  short  years  ago  were 
spinning  out  the  intricacies  of  deterrence  doctrine  have 
since  changed  their  focus.  Every  avenue  was  a  bhnd 


alley,  ending  in  an  intolerable  risk  of  annihilation. 
E  ==  MC^  is  not  the  formula  for  national  security. 

I  would  add  another  factor:  the  threat  which  the 
nuclear  stalemate  poses  to  our  democratic  way  of  life. 
More  and  more  of  the  vital  decisions  are  made  at  the 
highest  level — that  is,  by  the  president  and  his  inner 
circle  of  advisers — behind  closed  doors,  on  the  basis  of 
information  and  for  reasons  which  cannot  be  revealed 
or  publicly  debated.  This  is  at  present  unavoidable 
but  nonetheless  unfortunate.  But  more  than  this  is  in- 
volved. For  the  first  time  in  our  country's  history,  we 
feel  truly  insecure,  and  we  find  it  difiicult  to  live  with 
insecurity.  We  fear  Russian  power,  and  are  frustrated 
that  we  cannot  control  the  course  of  events  in  much  of 
the  world.  We  have  translated  our  hatred  for  commu- 
nist ideology  into  an  implacable  hatred  for  the  Russians 
and  the  Chinese  Communists.  As  a  result,  all  our  reac- 
tions to  every  issue  tend  to  be  in  cold-war  terms.  One 
point  of  view  is  "pro-communist,"  another  "anti- 
communist,"  whether  the  issue  is  landing  the  marines 
in  Cuba,  the  minimum  wage,  or  the  fluoridation  of  our 
water  supply.  Democratic  government  cannot  operate 
effectively  in  this  atmosphere.  Also,  there  is  real  danger 
that,  if  we  should  lose  out  to  the  Communists  in  other 
countries — ^Vietnam,  Iran,  Venezuela — our  hatred,  fear 
and  frustrations  will  lead  to  an  act  of  desperation  that 
will  touch  off  World  War  III. 

What,  then,  of  arms  control  as  a  way  out? 

When  we  still  had  a  monopoly  on  nuclear  weapons, 
we  offered  the  Baruch  plan.  Its  major  premise  was  that 


effective  control  of  fissionable  materials  required  com- 
plete international  control  of  their  extraction,  process- 
ing and  use;  that  if  fissionable  materials  in  significant 
quantities  came  into  national  hands,  control  was  not 
feasible.  Our  nuclear  weapons  are  said  to  pack  the 
equivalent  of  ten  tons  of  tnt  for  every  human  being  on 
earth.  The  Russian  stockpile  is  presumably  of  a  com- 
parable order  of  magnitude.  If  the  premise  of  the 
Baruch  plan  was  sound,  we  have  indeed  had  it. 

Since  the  Baruch  plan  failed  to  win  acceptance,  our 
emphasis  in  disarmament  negotiations  has  been  on  in- 
spection. Perhaps  we  have  over-emphasized  its  role,  or 
at  least  failed  to  distinguish  between  the  roles  which 
inspection  can  play  in  different  arms-control  programs. 
One  should  keep  in  mind  that  inspection  is  not  an  end 
in  itself.  The  immediate  purpose  of  inspection  is  to  ob- 
tain information,  but  the  end  is  to  determine  whether 
an  arms-control  arrangement  is  being  carried  out.  Even 
this  is  not,  of  course,  the  ultimate  end.  Verification  is 
not  control. 

Information  can  be  obtained  either  by  open,  author- 
ized means,  that  is,  by  inspection,  or  by  covert,  unau- 
thorized means,  that  is,  by  espionage.  Our  emphasis  in 
current  negotiations  on  inspection — ^which  played  a 
relatively  minor  role  in  disarmament  arrangements  in 
the  pre-nuclear  era — implicitly  recognizes  that  espio- 
nage cannot  now  supply  the  adequate,  rehable,  usa- 
ble information  necessary  to  verify  comphance  with  an 
arms-control  arrangement.  An  inquiry  into  the  difficult 
if  not,  indeed,  insoluble  problems  involved  in  devising 


a  workable  inspection  system  is,  then,  in  eflFect  also  an 
inquiry  into  the  utility — almost  by  definition  the  lesser 
utility — of  espionage  in  arms  control. 

Useful  information  can,  broadly  speaking,  be  about 
the  intentions,  the  capabilities  and  the  actions  of  the 
parties  to  an  arms-control  scheme.  All  such  information 
will  usually  be  relevant,  but  one  kind  or  another  may  be 
crucial  in  a  particular  arms-control  scheme.  Inspection 
may  yield  information  about  intentions  as  well  as  capa- 
bilities and  actions,  but  it  is  probably  a  fair  generaliza- 
tion that  reliable  information  as  to  intentions  is  the 
most  difficult  to  obtain,  information  about  acts  the 
easiest.  The  point  is  worth  keeping  in  mind  in  select- 
ing from  among  possible  arms-control  schemes. 

A  test  ban  is  a  relatively  promising  arms-control  ar- 
rangement, partly  because  the  crucial  information 
needed  to  know  whether  it  is  being  observed  is  with  re- 
spect to  acts.  It  is  seemingly  agreed  that  nuclear  weap- 
ons cannot  be  developed  unless  they  are  tested.  We 
are  satisfied  that  tests  in  the  atmosphere  can  be  eflpec- 
tively  monitored.  Our  concern  has  been  with  under- 
ground tests  and  also  tests  in  outer  space.  There  is  de- 
bate about  how  eflFective  monitoring  of  underground 
tests  by  seismic  instruments  implemented  by  periodic 
on-the-spot  checks  can  be.  In  the  background  of  this  de- 
bate is  the  issue  of  how  high  the  reliability  or  confidence 
level  of  an  inspection  system  must  be.  Some  take  the 
position  that  it  must  be  completely  reliable.  The  basic 
question  is,  however,  whether  the  risk  that  the  other 
side  will  not  only  try  to  evade,  but  will  both  escape  de- 
tection and  achieve  significant  results,  is  as  great  as  the 


risk  with  no  test  ban.  The  choice  is  between  risks,  not 
between  a  risk  and  no  risk.  The  other  side  will  not  try  to 
evade  until  it  weighs  the  likelihood  and  consequences 
of  being  caught  against  the  possible  but  not  certain 

It  seems  most  unlikely  that  the  Russians  resumed  test- 
ing and  scuttled  the  test-ban  negotiations  because  they 
feared  that  we  would  successfully  evade  a  test  ban.  It 
seems  doubtful  also  that  the  fear  that  the  Russians 
would  successfully  evade  a  ban  has  been  a  major  factor 
motivating  American  opposition  to  a  test  ban,  even 
though,  with  their  closed  and  our  open  society,  eva- 
sion might  be  only  difficult  for  them,  whereas  for  us  it 
would  probably  be  impossible.  The  Russian  announce- 
ment that  they  were  resuming  testing  strongly  suggests 
that  they  did  not  believe  they  could  test  effectively 
without  detection,  even  in  the  absence  of  an  agreed 
inspection  system.  It  is  much  more  Hkely  that  the  Rus- 
sians resumed  testing,  in  part  at  least,  because  they 
believed  they  could  gain  more  from  weapons  develop- 
ment than  we  could.  American  pressures  to  resume  test- 
ing even  before  the  Russians  did  so  reflected  the  behef 
that  we  could  gain  more  than  they  could.  This  is  one 
form  of  a  harder  question.  In  an  area  so  new  and  so 
little  understood  as  nuclear  warfare,  what  will  be  the 
impact  on  the  two  sides  of  a  common  restriction?  Any 
negotiator  will  be  troubled  because,  for  reasons  he  may 
not  discern,  a  restriction  may  have  a  greater  impact  on 
the  mihtary  potential  of  his  country  than  on  that  of 
the  other  country.  The  conservative  approach  is  to  re- 
fuse to  agree  to  a  restriction.  This  is,  however,  an  elec- 


tion  to  continue  the  arms  race  rather  than  to  try  arms 
control.  It  has  Httle  to  do  with  the  feasibihty  of  a  test 
ban  or  the  eflFectiveness  of  available  inspection  tech- 
niques in  ensuring  its  observance. 

A  test  ban  also  raises  the  issue,  particularly  for  the 
Russians,  of  the  side  efiFects  of  inspection.  This  is  the 
problem,  referred  to  by  Professor  Stone,  of  how  much 
other  information — on  conventional  forces,  nuclear 
weapons,  civil  defense,  communications,  and  the  rest — 
the  inspectors  assigned  to  monitor  the  test  ban  would  or 
might  acquire.  This  is  not  a  trivial  point,  to  be  dis- 
missed as  mere  propaganda,  nor  one  that  arises  only  in 
the  test-ban  situation.  Inspection  techniques  must  be 
shaped  as  much  as  possible  to  take  account  of  this 
factor.  This  seems  more  feasible  with  respect  to  a  test 
ban  than  with  other  arms-control  systems. 

The  role  which  inspection  can  play  in  other  contexts 
than  the  test  ban  is  quite  different  and,  unhappily, 
much  less  impressive. 

The  haunting  fear  is  of  surprise  attack.  Protection 
against  surprise  attack  is  essentially  a  matter  of  receiv- 
ing adequate  warning,  that  is,  notice  of  the  other  side's 
intention  to  attack.  But  it  is  precisely  in  providing  reli- 
able information  regarding  intention  that  inspection  is 
least  satisfactory.  Physical  inspection  to  protect  against 
surprise  attack,  even  if  it  meant  constant  surveillance  of 
every  launching  site,  missile-firing  submarine,  plane  and 
train,  would  reveal  only  that  every  missile  was  ready  for 
launching,  as  a  good  missile  should  be.  It  would  not  re- 
veal whether  there  was  any  intention  to  launch.  It  has 
been  said  that  a  perfect  inspection  system  with  perfect 


communications  could  at  most  give  ten  minutes*  added 
warning  of  a  surprise  attack.® 

Inspection  can,  however,  provide  some  protection 
against  surprise  attack,  in  the  nature  of  long-run  rather 
than  immediate  warning.  Surprise  attack  is  essentially  a 
matter  of  intention,  but  it  also  involves  capability.  If 
one  side's  capabiHties  are  concentrated  in  weapons 
with  a  low  survival  value — that  is,  weapons  such  as 
liquid-fueled,  fixed-site  missiles  and  manned  bomb- 
ers, which  are  likely  to  be  destroyed  in  an  enemy  attack 
— the  other  side  is  warned  to  be  on  the  alert  against  a 
surprise  attack  and  could  be  moved  to  launch  a  fore- 
stalhng,  pre-emptive  attack  of  its  own.  This  is  so  be- 
cause, since  these  weapons  are  not  likely  to  be  avail- 
able to  respond  to  an  attack,  their  obvious  purpose  is  for 
use  in  a  surprise  attack.  If,  on  the  other  hand,  one 
side's  capabilities  are  concentrated  in  weapons  with  a 
high  survival  value — nuclear-powered,  missile-launch- 
ing submarines  or  sohd-fueled  missiles  in  silos — this 
constitutes  some  assurance  to  the  other  side  that  no  sur- 
prise attack  is  planned.  Something  comparable  can  be 
said  if  one  side's  capabilities  are  concentrated  in  rela- 
tively low-accuracy,  city-destroying  weapons,  rather 
than  in  high-accuracy,  counter-force  weapons  capable 
of  knocking  out  the  other  side's  bomber  bases  and  mis- 
sile sites.  The  assurance  is  in  either  case  far  from  per- 
fect, since  any  weapon,  no  matter  how  high  its  survival 
value,  can  be  used  in  a  surprise  attack  against  any  tar- 
get. It  is  still  true,  however,  that  the  information  which 
inspection  might  give  as  to  total  capabihties  could  be 
reassuring.  Neither  side  is  likely  to  launch  a  surprise  at- 


tack  unless  it  enjoys  a  marked  overall  superiority  in 
weapons.  Knowledge  that  the  other  side  lacks  such  su- 
periority can,  then,  lessen  the  fear  of  surprise  attack 
and  slow  down  the  arms  race.  It  seems  likely  that  the 
information  we  gained  regarding  total  Russian  capa- 
bilities— perhaps  thanks  to  the  U-2 — led  to  the  slowing 
down  of  our  missile  program. 

The  other  risks  inherent  in  the  arms  race,  referred  to 
earlier,  are,  in  the  present  context,  forms  of  surprise  at- 
tack; and  again  inspection  can  play  at  best  a  limited 
role  in  minimizing  any  of  them.  The  accidental  firing 
of  a  nuclear  weapon  is,  in  a  sense,  an  unintended  and, 
hopefully,  limited  surprise  attack — one  that  surprises 
both  sides.  If  the  control  system  of  the  side  whose  weap- 
ons are  involved  can't  prevent  an  accident,  inspectors 
can  hardly  do  so,  though  they  might  conceivably  get 
notice  to  the  other  side  that  an  accident  was  just  that. 
Resorting  first  to  tactical  nuclear  weapons  or  to  stra- 
tegic nuclear  weapons,  in  what  began  as  a  limited  war, 
is  again  a  form  of  surprise  attack.  It  seems  most  doubt- 
ful that  any  inspection  system  could  survive  the  out- 
break of  war,  if  for  no  other  reason  than  that  the  side 
eflFects  of  inspection  would  then  loom  so  large. ^  If  the 
inspection  system  did  survive,  it  could  perhaps  reveal 
whether  the  armies  in  the  field  (whatever  that  term 
may  now  mean)  had  a  nuclear  capability,  and  possibly 
of  what  size;  but  again  it  could  hardly  give  timely  in- 
formation of  the  key  factor,  intention  to  use  the  nuclear 
weapons.  The  risk  of  catalytic  war  again  involves  the 
element  of  surprise.  However,  although  capability  is 
necessary  and  intention  relevant,  the  crucial  factor  is  an 


act,  e.g.,  the  launching  of  a  missile  or  missiles.  In- 
spectors could  conceivably  convey  to  the  prospective 
belligerents  timely  information  as  to  the  source  of  the 
attack,  and  that  possibility  could  serve  to  deter  a  third 
country  from  trying  the  catalyst's  role. 

What  has  been  said  relates  to  the  possible  roles  of  in- 
spection in  minimizing  the  risks  inherent  in  a  fully 
armed  world.  At  best  the  role  is  marginal  and  the  risks 
awesome.  Any  significant  reduction  in  those  risks,  to 
anything  like  a  tolerable  level,  requires  some  measure 
of  arms  limitation.  One  possible  arms-limitation 
scheme  would  leave  each  side  with  enough  bombers 
and  missiles  to  serve  as  a  deterrent  but  not  enough  to 
make  surprise  attack  an  attractive  gamble.  The  purpose 
of  such  a  scheme  would  be  so  to  reduce  the  destruc- 
tive capabilities  of  the  two  sides  that  the  continuance  of 
our  civihzation  would  no  longer  depend  wholly  on  their 
will.  The  role  of  inspection  in  implementing  such  a 
scheme  would  be  almost  entirely  to  ascertain  total 
capabihties.  It  would  be  a  crucial  role,  since  the  pre- 
mium on  evasion  would  be  high.  That  premium  would, 
moreover,  rise  as  the  permitted  level  of  nuclear  arms 
approached  zero.  If  the  permitted  level  of  nuclear  arms 
were,  say,  one  hundred,  and  one  side  actually  had  one 
hundred  five,  the  difference  could  be  insignificant.  If 
the  permitted  level  were  zero,  and  one  side  actually 
had  five,  the  difference  could  be  decisive. 

The  ultimate  question  is,  then,  whether  inspection 
can  give  rehable  information  wdth  respect  to  total  capa- 
bihty.  The  stakes  are  such  that  the  question  calls  for  a 
long,  hard  look.  One  certainly  shouldn't  assume  that, 


because  inspection  to  ascertain  capability  is,  in  general, 
relatively  more  effective  than  inspection  to  ascertain 
intention,  it  does  not  present  difficult  and  perhaps  even 
insoluble  problems. 

It  is  probably  true  that  a  relatively  simple  inspection 
system — ^possibly  even  an  open  skies  system — could, 
over  a  period,  give  reasonably  reliable  information  as  to 
the  total  capability  of  each  side  in  missile-firing  sub- 
marines, bombers,  trains,  and  perhaps  even  liquid- 
fueled,  fixed-site  missiles.  Submarines  must  be  built, 
and  must  dock  somewhere  at  some  time.  Trains  have  to 
run  on  tracks.  An  air  base  can't  be  hidden,  and  per- 
haps the  same  is  true  of  launching  sites  for  hquid- 
fueled  missiles.  Underground  silos  housing  sohd-fueled 
missiles  are  another  matter  entirely.  We,  with  our  open 
society,  can't  keep  their  location  secret.  The  Russians, 
with  their  closed  society,  may  be  able  to.  The  New  York 
Times  recently  pubHshed  a  map  of  all  our  missile  sites, 
existing  and  planned.®  Pravda  has  not  published  a  com- 
parable map  showing  Russian  missile  sites.  So  long  as 
contracts  for  the  construction  of  our  missile  bases  are 
public  contracts,  let  by  competitive  bidding,  and  labor 
disputes  at  the  sites  are  news  in  this  country,  the  Rus- 
sians can  learn  their  location  without  benefit  of  inspec- 
tors. The  Russian  system  is  different.  Perhaps  aerial  in- 
spection during  construction  would  do  the  job,  but 
after  that  it  may  be  that  no  system  of  inspection  would 
be  effective.  Moreover,  if  there  is  a  limitation  on  nuclear 
weapons,  capability  can  be  as  much  a  question  of 
spare  parts,  pipe  lines,  production  facilities,  trained 
personnel  and  the  like,  as  of  missiles  in  position  to  be 


fired.  Whether  an  inspection  system,  however  complex, 
could  yield  reliable  information  on  capability  in  this 
sense  is  highly  debatable. 

Inspection  to  determine  capability  also  raises  major 
problems  with  respect  to  side  effects.  An  inspection  sys- 
tem which  gave  reliable  information  as  to  capabilities 
would  necessarily  pinpoint  every  stationary  target,  e.g., 
missile  sites,  airfields,  for  the  other  side.  It  would  not  do 
so,  however,  with  respect  to  missile-firing  submarines 
and  trains.  Again,  if  one  side  knew  precisely  the  capa- 
bilities of  the  other,  it  might  risk  a  surprise  attack,  while 
if  it  didn't,  it  wouldn't.  This  should  not  be  true,  how- 
ever, if  the  nuclear  arsenal  of  each  side  is  significantly 
limited.  There  could  remain,  however,  the  related  risk 
that  inspection  might  reveal  a  flaw  in  one  side's  weap- 
ons system,  inherent  or  temporary,  and  known  or  un- 
known to  it. 

Doubt  as  to  the  possible  effectiveness  of  physical  in- 
spection has  led  some  to  explore  the  possibilities  of 
other  kinds  of  inspection,^  such  as  the  use  of  lie  detec- 
tors. More  interesting  is  the  idea  of  an  open  scientific 
world,  assured  by  recruiting,  say,  10  per  cent  of  the 
scientists  in  any  laboratory  from  nationals  of  the  other 
side.  This  would  give  a  real  impetus  to  the  arms  race, 
unless  it  were  coupled  with  a  general  arms-limitation 
program.  Again,  an  arms-limitation  program  might  be 
implemented  by  persuading  enough  of  the  citizens  of 
every  country  that  their  first  duty  was  to  see  to  it  that 
their  country  lived  up  to  the  arms-limitation  agreement, 
to  the  point  that  they  would  reveal  any  information 
they  might  have  of  a  violation  by  their  own  country.  Im- 


plementing  this  scheme  of  popular  inspection  would 
present  its  problems:  How  could  the  informants  com- 
municate with  the  inspectors?  How  could  the  inform- 
ants be  protected?  How  could  the  information  so  ob- 
tained be  evaluated?  The  scheme  would  not,  of  course, 
be  foolproof,  but  it  could  raise  the  risk  of  evasion  to  a 
very  high  level. 

If  general  and  complete  disarmament,  or  even  gen- 
eral and  complete  nuclear  disarmament,  is  not  possible, 
an  arms-limitation  program  may  be  feasible  which 
would  hmit  each  side's  arsenal  to  missile-firing  sub- 
marines and,  perhaps,  trains — that  is,  to  mobile  launch- 
ing devices — and  would  be  implemented  by  both  a 
physical  inspection  system  and  inspection  by  popula- 
tions. It  would  have  the  great  advantages  of  removing 
nuclear  weapons  from  centers  of  population  and  of 
minimizing  the  side  ejffects  of  inspection.  It  may  seem 
paradoxical  to  suggest  ehminating  all  fixed-site,  land- 
based  missiles,  when  evasion  of  such  a  limitation  is  ad- 
mittedly the  most  diflBcult  to  detect.  It  is,  however, 
likely  that  inspection  would  be  more  eflFective,  and  eva- 
sion more  difficult,  if  the  prohibition  were  absolute 
rather  than  partial.  Any  evidence  which  suggested  that 
one  side  was  maintaining  or  trying  to  create  any  capa- 
bility of  this  nature  would  then  be  unambiguous.  Ad- 
mittedly, there  are  risks  in  putting  all  one's  nuclear 
eggs  in  one  or  two  baskets,  but  they  may  well  be  less 
than  the  risks  we  now  run. 

It  is  time  to  consider  inspection  in  implementation  of 
arms  control  in  the  context  of  Professor  Wright's  and 
Professor  Stone's  illuminating  discussions  of  espionage. 


Espionage  is  simply  covert,  unauthorized  inspection. 
One  cannot  but  be  impressed  by  Professor  Stone's  argu- 
ment that  it  is  in  the  interest  of  all  nations  that  espio- 
nage not  be  considered  prohibited  by  international  law 
per  se.  Professor  Falk  has,  however,  argued  most  effec- 
tively that  unilateral  acts  of  espionage  are  destabiliz- 
ing, and  hence  particularly  dangerous  in  a  world  in 
which  both  sides  command  so  formidable  a  nuclear 
capacity.  Moreover,  the  thrust  of  Professor  Stone's  argu- 
ment carries  one  well  beyond  the  potential  ability  of 
espionage  to  minimize  the  risks  which  confront  man- 
kind. Whether  inspection — that  is,  open,  authorized 
espionage — can  effectively  implement  a  significant 
measure  of  arms  control  is  debatable.  That  it  can  be 
more  effective  than  espionage  seems,  however,  clear 
enough.  Inspection  is  weak  in  the  area  of  intention,  but 
Korea,  Hungary,  Suez,  Cuba,  and  Algiers  suggest  that 
traditional  espionage  is  no  stronger. 

The  significant  point  is,  however,  that  intention  is  of 
maximum  importance  in  a  world  engaged  in  an  arms 
race.  Arms  control  shifts  the  emphasis  to  capabifity, 
which  is  more  easily  verified.  Those  who  fear  the  risks 
of  arms  control  implemented  by  inspection  should 
ponder  the  risks  we  now  take  in  making  crucial  de- 
cisions on  the  basis  of  information  obtained  by  espio- 
nage. We  may  have  slowed  down  our  missile  program 
on  the  basis  of  information  obtained  from  the  U-2 
flights.  Information  obtained  by  inspection  would  have 
been  more  rehable.  More  recently  we  made  another 
crucial  decision,  on  the  basis  of  information  obtained 
by  espionage,  as  to  the  situation  in  Cuba.  Our  choice  is 


between  risks — not  between  the  risks  of  arms  control 
and  the  safety  of  an  arms  race. 

The  hmitations  imposed  by  traditional  international 
law  on  the  conduct  of  states  have  httle  relevance  to 
the  arms-control  problem.  International  law  does  not 
forbid  a  country  to  arm  itself  with  nuclear  weapons,  at 
least  for  defensive  purposes — and  who  has  them  for  any 
other  purpose?  It  does  not  deny  missile-firing  subma- 
rines the  right  to  run  submerged  anywhere  on  the  high 
seas.  It  does  not  require  nations  to  open  their  military 
secrets  to  inspectors,  nor  does  it  preclude  their  punish- 
ing those,  citizens  or  aHens,  who  ferret  out  those  secrets. 
Arms  control  can  be  achieved  only  through  interna- 
tional agreements,  though  such  agreements  can  be  tacit. 

International  law  and  lawyers  can  contribute  to 
achieving  arms  control  primarily  by  suggesting  the 
shape  such  agreements  can  take,  and  the  means 
through  which  they  can  be  implemented. 

1.  On  the  problem  of  arms  control,  see  generally  Kis- 
singer, The  Necessity  for  Choice  (1960);  Arms  Con- 
trol, Disarmament  and  National  Security  (Brennan 
ed.  1961);  Arms  Reduction,  Program  and  Issues  (Frisch 
ed.  1961);  ScHELLiNG  &  Halperin,  Strategy  and  Arms 
Control  ( 1961 ) ;  Bull,  The  Contool  of  the  Arms  Race 
(1961);  Inspection  for  Disarmament  (Melman  ed. 

2.  N.Y.  Times,  April  8,  1961,  p.  1.  See  also  the  report  of 
the  Bomarc  incident,  N.Y.  Times,  June  8,  1960,  p.  2. 

3.  Hubbell,  You  Are  Under  Attack,  Reader's  Digest, 
April  1961,  p.  37. 

4.  Baldwin,  Race  for  the  Anti-Missile  Missile,  N.Y. 
Times,  April  15,  1962  (Magazine),  p.  21. 


5.  N.Y.  Times,  Dec.  28,  1960,  p.  1. 

6.  Kissinger,  Arms  Control,  Inspection  and  Surprise  At- 
tack, 38  Foreign  Affairs  557  at  562  (July  1960). 

7.  Cf.  Schelling,  Arms  Control — Proposal  for  a  Special 
Surveillance  Force,  13  World  Politics  No.  1,  p.  1  (Oct. 

8.  More  recently  the  Times  published  a  map  of  the  area 
around  Bitburg,  in  West  Germany,  showing  the  location  of 
missile  sites — described  as  "the  only  ^hardened'  missile  sites 
in  Europe  west  of  the  Iron  Curtain" — around  the  United 
States  air  base  there.  N.Y.  Times,  Sept.  23, 1961,  p.  6. 

9.  See  Inspection  for  Disarmament  (Melman  ed. 



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